Petition for Writ of Certiorari — Gaines v. White River Environmental Partnership
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(\) Suprarae Court, US.
03 578 OCT 112003
OFPICE OF THE CLERK
UNITED STATES SUPREME COURT
LOUIS F. GAINES,
Plaintiff - Petitioner -
Vv.
WHITE RIVER ENVIRONMENTAL
PARTNERSHIP, Et Al.,
Defendants - Respondents
Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Seventh Circuit
PETITION FOR A WRIT OF CERTIORARI
Louis F. Gaines, Pro Se
5337 North College Avenue
Indianapolis, IN 46220 - 3141
317 -- 283 - 4821
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QUESTIONS FOR REVIEW
1. If the "Lower Courts" have used a system of
"Double-Standards" to grant summary judgments
to the Defendants, which deny Pro Se Plaintiff
due process and equal protection of the law - then
what relief is the Plaintiff due? See "Material
Facts," PP. 4-16, for example.
2. On January 3U, 1994, Indianapolis, IN., hired
the Defendants to manage and operate their two
wastewater treatment plants: Belmont and South-
port, which constantly affect commerce. For the
purpose of Title 42 U. S. C., § 1983 - did the
"Lower Courts" error in claiming that the Defen-
dants are not "State Actors?” See PP. 16-17.
3. If, on the one hand, the Defendants have
engaged in employment practices against the
Plaintiff that provoke litigation; and, if, on the
other hand, the "Lower Courts" will not defend
the Plaintiff's rights against the Defendants - then
should the $3,600.00 in sanctions against the
Plaintiff be allowed to stand? The Plaintiff has
been trying to defend himself against the De-
fendants in the form of Pro Se. See PP. 17-19.
4. Should EEOC "For 5" be revised, or
declared "Unconstitutional," because it is bias in
favor of employers? By design, only one or two
"Respondents" can be listed on the form, which
can affect the outcome, if there are three or more
"Respondents" that are being charged with un-
lawful discrimination in employment. The above
flaw can affect millions of "Citizens." See P. 19.
5. Given the limitation of EEOC "Form 5," if
the Plaintiff properly named the parties in the
"Complaint," then does the latter take priority
over the former. In other words, did the "Lower
Courts" dismiss any party in error, simply because
it was not listed on the above form? Ibid.
6. On June 2, 1999, the Defendants caused Pro
Se Plaintiff to su.°*> an on-the-job, "Irreparable
Injury,” during discovery; in Gaines v. White
River Environmental Partnership, et al., IP 98-C-
741-M/S. If the Seventh Court can collect
$3,600.00 in sanctions against the Plaintiff, if the
Defendants have provoked all litigation in the fist
place; then when will the Plaintiff get paid for the
above injury? See PP. 4-7.
7. If the Defendants used deceit or mis-
representation to get the District Court, in.. .,
1524, te dismiiss EEOC Charge #240-A20-1240,
and if the District Court, in... , 0595 took
jurisdiction of the foregoing charge in error, and
also determined the merits in error; and, if these
errors were affirmed upon appeal - then what
relief is the Plaintiff due? Ibid.
8. Can the Federal Rules of Civil Procedure,
Rule 9b, be used as an authority to seek relief
from "Fraud?" See PP. 13-15. The Lower
Courts denied relief under Title 42, U. S. C., §
1983 on the claimed that the Defendants are not
"State Actors," but failed to address the appli-
cation of Rule 9b. If this procedure denied Pro
Se Plaintiff due process and/or equal protection of
the law, then what relief is due?
9. What other relief is Pro Se Plaintiff due?
ii.
LIST OF PARTIES
. LOUIS F. GAINES, Petitioner
5337 North College Avenue
Indianapolis, IN 46220 - 3141
. WHITE RIVER ENVIRONMENTAL PART-
NERSHIP, Et. Al., Respondent
2700 South Belmont Avenue
Indianapolis, IN 46221
3. IWC RESOURCES CORPORATION,
Managing Partner, and Responde:.
1220 Waterway Boulevard
Indianapolis, IN 46206
. SUEZ, Partner, and Respondent
16 Rue De La Ville Leveque
75383 Paris Cedix 08
France
. UNITED WATER SERVICES, Inc.
-Partner, and Respondent
200 Old Hook Road
Harrington Park, NJ 07640
iii.
TABLE OF CONTENTS
SUBJECT PAGE
QUESTIONS FOR REVIEW i,
LIST OF PARTIES iii.
TABLE OF AUTHORITIES v.
CITATION OF OPINIONS & REPORTS 1.
CONSTITUTION & OTHER AUTHORITY 2.
STATEMENT OF THE CASE 2.
Jurisdiction Of The Lower Courts 2.
Material Facts To Consider - 4.
ARGUMENT 20.
Summary 20.
Conclusion 29.
APPENDIX 30.
iv.
TABLE OF AUTHORITIES
CASE PAGE
ANDERSON v. LIBERTY LOBBY
INC., 106 S. Ct. 2505; 1986
BRENTWOOD ACADEMY v. TENNES-
SEE SECONDARY SCHOOL ATHLETIC
ASSOCIATION, Et Al., 148 L Ed 2d
807; 2001
CURTIS 1000, INC., v. SUESS,
24 F.3d 941 (7th Cir. 1994)
GILBERT v. HOMAR, 138 L Ed 2d
120, 121; 1997
HARRIS v. FORKLIFT SYSTEMS, INC.,
126 L Ed 2d 295; 1993
KOLSTAD v. AMERICAN DENTAL
ASS'N, 119 S. Ct. 2118; 1999
McCORMICK v. CITY OF CHICAGO,
390 F. 3d 319 (7th Cir. 2000)
REEVES v. SANDERSON PLUMBING
PRODUCTS, INC., 147 L Ed 2d 105;
2001
SHIRLEY v. STATE NATIONAL BANK
OF CONNECTICUT, 493 F.2d 739;-1974
21.
23.
25.
22.
21.
25.
24.
23.
23.
UNITED STATES CONSTITUTION:
First Amendment: P. 3.
Fifth Amendment: PP. 2, 3 & 20.
Eighth Amendment: PP. 2, 3 & 20.
Thirteenth Amendment: PP. 2 & 3.
TITLE 28 U.S.C.
§ 1254: P. 1.
TITLE 29 U.S.C.
§ 623(a): PP. 2 & 20.
§$ 623(d): PP. 2 & 20.
TITLE 42 U.S.C.
§ 1391: P. 3.
§ 1981: PP. 2,3 & 20.
$ 1981(c): P. 2.
vi.
-
§ 1983: PP. 2, 3,17 & 23.
§ 2000e-2(a): PP. 2 & 20.
§ 2000e-2(k)(c)(2): PP. 2 & 20.
§ 2000e-2(m): PP. 2 & 20.
§ 2000e-3(a): 2 & 20.
§ 2000e-5: P. 3.
FEDERAL RULES OF:
Appellate Procedure, Rule 35: PP. 2 & 20.
Appellate Procedure, Rule 38: PP. 2,18 &
20.
Civil Procedure, Rule 56: PP. 2 & 20.
Evidence, Rule 406: 2, 3, 20 & 23.
Vii.
CITATION OF OPINIONS OR REPORTS
LOUIS F. GAINES v. WHITE RIVER
ENVIRONMENTAL PARTNERSHIP, Et Al .:
530 U.S. 1230; 120 S. Ct. 2661; 147 L. Ed. 2d
275; June 12, 2000.
534 U.S. 952; 122 S.Ct. 349; 151 L. Ed. 2d
263; October 9, 2001.
202 F. 3d 272; January 3, 2000.
248 F. 3d 1157; March 23, 2001.
No. 02-4289 & 03-1967, July 24, 2003; see Ap-
pendix A., PP. 1-8.
No. 1: 02 cv 1524 - DFH, November 27,
2002; Ibid... B., PP. 9 - 13.
No. IP 02-0595-T/K, March 14, 26, 27, &
31, 2003; Ibid., C., PP. 14-61.
IP 98-1741-C-M/S, August 19, 1999, and October
25, 1999; 00-2802, March 23, 2001, and May 17,
2001; Ibid., D. PP. 62 - 72.
SUPREME COURT 's JURISDICTION
One, the "Order" of the Seventh Court was
entered on July 24, 2003. See Appendix A., P. 1.
Two, Rule 11 does not apply. Three, 2 Petition
for a Rehearing was not allowed. Four, this
matter comes to the Supreme Court on the
authority of Tile 28, U.S.C., § 1254.
AS SAH
CONSTITUTION & OTHER AUTHORITY
—
United States Constitution: the Fifth, Eighth, and
Thirteenth Amendments. See Appendix E. , P. 74.
Title 29, U.S.C., §§ 623(a) & 623 (d). Ibid.
Title 42 U.S.C. , 88 1981; 1981(c); 1983;
2000e-2(a); 2000e-2(k)(c)(2); 2000e-2(m), -and
2000e-3(a). Ibid.. PP. 75 - 76.
Federal Rules OF:
Appellate Procedure, Rule 35. Ibid., E.,
PP. 76 - 77.
Appellate Procedure, Rule 38, Ibid., P. 78.
Civil Procedure, Rule 56, Ibid., P. 78.
Evidence, Rule 406, Ibid., P. 79.
STATEMENT OF THE CASE
Jurisdiction Of The Lower Courts:
1. Gaines v. WREP, Et Al., IP-02-0595-C-
T/K, represents a continuing case involving un-
lawful discrimination in employment. On April
19, 2K02, a complaint was filed with the United
Sates District Court, Southern District of Indiana,
at Indianapolis; and, it was brought on the
following authority: (1) Title 28, U.S.C., §§ 1330,
1331, 1332 & 1343; (2) Title 29, U.S.C., § 626;
2.
(3) Title 42, U.S.C., §§ 1391, 1981, 1983 &
2000e-5; (4) the First, Fifth, Eighth & Thirteenth
Amendments of the U.S. Constitution; (5) the
Federal Rules of Civil Procedure, Rule 9, and the
Federal Rules of Evidence, Rule 406. On March
27, 2K03, however, the Plaintiff's Summary
Judgment Motion was denied, and the Defendants’
were granted. The Plaintiff timely appealed to
the Seventh Court.
2. On October 4, 2K02, another suit
involving unlawful discrimination in employment
had to be brought against the same defendants,
and under Gaines v. WREP, Et Al., 1:02-CV-
1524-DFH. The jurisdiction was the same, or
essentially the same, as expressed in fl 1., above.
Through the use of deceit or trickery - the
Defendants were able to get this suit dismissed
November 27, 2K02. Pro Se Plaintiff timely
appealed to the Seventh Court.
3. The Seventh Court received the above
appeals on the authority of Title 28, U.S.C., §
1291. On its initiative or motion, the Seventh
Court combined the above cases, and on July 24,
2K02 did the following: (1) affirmed the summary
judgments for the Defendants; (2) at the en-
couragement of the Defendants - the Seventh
Court fined Pro Se Plaintiff $2,500.00 for alleged-
ly bringing "frivolous" appeals; (3) proposed
other sanctions against the Plaintiff. In response
to the foregoing sanctions, Pro Se Plaintiff timely
paid the fine, and timely filed papers against it;
however, such payment and fillings do not appear
on the Seventh Court's docket sheet for either
case: 02-4289 or 03-1967! This appeal to the
Supreme Court, however, timely follows.
*
Material Facts To Consider:
Motions to amend, and summary judgments:
1. In Gaines v. White River Environ-
mental Partnership, et al., IP-98-1741-C-M/S; the
Defendants caused Pro Se Plaintiff to suffer an
on-the-job, "Irreparable Injury" on June 2, 1999,
which took place during "Discovery." These
events, however, followed: One, on June 10,
1999, Pro Se Plaintiff filed a motion to amend;
see Appendix D., P. 65. Two, the District Court
denied the motion, because EEOC had not issued
a right to sue; Ibid., P. 64-5. Three, on July 9,
1999, the Defendants filed a summary judgment
motion; Ibid., P. 67. Four, on or about July 10,
1999, EEOC's right to sue letter was received by
the Plaintiff, and on July 12, 1999 - a copy was
filed with the District Cour; Ibid., P. 66. Five, the
District Court continued to deny motions to
amend - because the Defendants had filed a
summary judgment motion on July 9, 1999; Ibid..
P. 67.
2. The above procedure in 7 1 was
affirmed upon appeal, on March 23, 2K01, and
May 17, 2K01, in... , 00-3802. Ibid., PP. 69 -
72. Here, the Seventh Court fined Pro Se
Plaintiff $1,000.00 for allegedly bringing a frivo-
lous appeal. Ibid.. P. 72. Also see 1 1, above.
3. In Gaines v. White River Environ-
mental Et Al., IP 02-0595-T/K, these events took
place: One, on March 4, 2K02, EEOC Charge
#240-A20-1240 was filed, and "Retaliation" was
claimed; Ibid.. Appendix C., P. 41. Two, on
April 19, 2K02, the "Complaint" was filed, which
only included rights-to-sue for EEOC Charges
240A12-467 and 240A200085; Ibid. P. 39.
Three, on May 29, 2K02, the Plaintiff's Summary
Judgment Motion was filed; Ibid.. P. 43. Four,
after filing his Summary Judgment Motion in
May, 2K02; in July, 2K02, EEOC issued its right-
to-sue for EEOC Charge 240A201240; Ibid. Five,
after filing the above Summary Judgment Motion,
Pro Se Plaintiff made no attempt to amend his
"Complaint" to include EEOC Charge #240-A20-
1240; Ibid.. P. 44. Six, given the above - no
evidence was presented in support of EEOC
Charge #240-A20-1240; and, Pro Se Plaintiff
objected to the Defendants' attempt to address the
issues that the foregoing charge presented. See
Appellant's Reply Brief for J2-4289, PP. 9-10;
Appellant's Response Brief for 02-4289, PP. 6-7;
and, Appellant's Reply Brief for 03-1967, PP. 4-5.
4. On October 4, 2K02, another suit was
filed against the Defendants, under .. . , 1:02-CV-
1524-DFH, which was based entirely on EEOC
Charge #240-A20-1240, and a right-to-sue letter,
dated July 30, 2K02. See Appendix A., P. 4.
5. Based on the Defendants’ deceit or
trickery, the District Court, in ..., 1524, wrote the
following on November 27, 2K02, as the reasons
for dismissing EEOC Charge #240-A20-1240.
Ibid., B., PP. 10-11:
ENTRY
"As part of its general power to ad-
minister its docket, a district court
ieee.
may stay or dismiss a suit that is du-
plicative of another federal court
suit." Curtis v. Citibank, N.A..,
226 F.3d 133, 138 (2d Cir. 2000).
The claims asserted in this action are
or could be asserted in Gaines v.
White River Environmental Part-
nership, et al., No. IP 02-595-C-T/K.
Accordingly, the defendants' motion
to dismiss is granted insofar as based
on the argument that this duplicative
action should not be permitted to
proceed. The court does not reach
any of the other arguments presented
by the defendants in their motion to
dismiss.
Judgment dismissing this action
without prejudice shall now issue.
eee Te ee m
So ordered
S/DAVID F. HAMILTON, Judge |
United States District Court |
Date: 11/27/02.
6. After the summary judgment for the
Defendants in . . . , 1524 was appealed to the
Seventh Court, under... , 02-4289; the District
Court in 0595 allegedly determined the merits of
EEOC Charge #240-A20-1240, and denied all
relief. Ibid., C., PP. 41-44, and PP. 49-56, for
6.
|
-
example. Also see fl 3., above, PP. 4-5.
7. The above procedure was affirmed by
the Seventh Court, which included the following
conclusion or determination. Ibid., A., P. 6:
..., A district court's denial of a
motion to amend, even if erroneous,
does not justify the filing of the pro-
posed amendment as a new lawsuit.
Time enlargements & summary judgments:
1. In its "Entry" for June 14, 2K02, the
District Court wrote the following, ir. IP-02-595.
See Appellant's Reply Brief for ..., 02-4289,
Appendix, P. 22:
ENTRY DIRECTING...
The defendants shall have
through July 10, 2002, in which
to respond to the plaintiff's mo-
tion for summary judgment and
in which to file a cross-motion
for summary judgment or any
other appropriate dispositive
action.
IT IS SO ORDERED
S/ JOHN D. TINDER, Judge
United States District Cout
Date: 6/13/2002
eS
2. After July 10, 2K02, the Defendants
filed a series of motions for time enlargements, to
respond to the Plaintiff's Summary Judgment
Motion, which was filed on May 29, 2K02. See
Appellant's Brief for ..., 03-1967, Appendix,
"Docket Sheets," Items #23, 25, 27, 28, 32, 33,
37 & 68, for example; PP. 38-41.
3. In every case - each time enlargement
was granted to the Defendants. Ibid.
4. On _ September 3, 2K02,_ the
Defendants' Summary Judgment Motion was filed.
Ibid., P. 39., Items #38-43.
5. On September 10, 2K02, the Plain-
tiff's Motion For A Favorable Summary Judgment
As A Matter Of Law, Or Grant Other Appropriate
& Fair Relief was filed. Here, the Plaintiff asked
for the following relief. Ibid., P. 80:
a. Grant the Plaintiff a favorable
‘Summary Judgment Ruling,' as a
matter of law.
b. If the Court rejects the above re-
lief, as request (sic) in Paragraph
1.a., then grant the Plaintiff a fif-
teen-month time enlargement to ap-
propriately and timely respond to the
Defendants' Motion For Summary
Judgment, and other related filings -
which were "Untimely" filed on Sep-
tember 3, 2K02. ...
6. The District Court in ..., 0595: (1)
would not assign any type of deadline for the
Plaintiff to meet; and, (2) would not grant any
type of time enlargement to Pro Se Plaintiff, to
respond to the Defendants’ Summary Judgment
Motion! Ibid.. PP. 39-41.
7. In its "Order" for July 24, 2K03, the
Seventh Court affirmed the above procedure. See
Appendix A., PP. 2-9.
8. In Gaines v. White River Environ-
mental Partnership, et al., IP-98-1741-C-M/S,
for example; the District Court gave Pro Se
Plaintiff through June 16, 2K, to fully respond to
the Defendants' Summary Judgment Motion that
was filed on July 9, 1999. Reference Appellant's
Response Brief for 02-4289, Appendix, P. 11.
This 11-month time enlargement was granted
when no other lawsuit was before any Court.
This procedure was approved on appeal in...,
00-3802, on March 23, 2K01. See Appellant's
Reply Brief for 03-1967; Appendix, PP. 7-9.
Affidavits & summary judgments
1. In its "Entry" for March 14, 2K03,
the District Court in... , IP 02-595-TK struck all
five of the Plaintiff's "Answer Affidavits" to the
Defendants’ Summary Judgment Motion. See
Appendix C., PP. 15-18.
2. The District Court claimed that Pro
Se Plaintiff's "Affidavits" were: (1) untimely
filed, and (2) were not based on Plaintiff's
personal knowledge. Ibid., PP. 16-7.
9.
3. On March 27, 2K03, Pro Se Plaintiff
filed a motion to vacate the District Court's
"Entry" of March 14, 2K03. See Appellant's
Brief for 03-1967, Appendix, P. 41, Item #77.
4. In its "Entry" for March 31, 2K03,
the District Court wrote in part the following.
See Appendix C., PP. 59-60:
The basis for each of these filings is
that the plaintiff believes the court
unfairly granted the defendants time
to file their response to the plaintiff's
motion for summary judgment while
at the same time the court struck
from the record several of the plain-
tiff's filing which were filed after his
initial response to the defendants'
motion for summary judgment. Any
relief sought by the plaintiff's March
27, 2003 filing is denied. ... More-
over, the defendants filed a single re-
sponse to the plaintiff's motion. The
plaintiff, on the other hand, never
sought additional time to file any
supplemental responses to the de-
fendants' motion. Rather, he filed
a series of responses, weeks or
months apart, without leave of the
court. This is not the proper manner
in which to brief a pending disposi-
tive motion. There was no error in
the rulings issued on March 14, 2003.
5. See P. 8. 15.
10.
6. As part of its "Order" affirming the
summary judgment for the Defendants, the
Seventh Court partially wrote the following.
Ibid., A., PP. 5-6:
... Gaines offers no explanation
why he thinks the district court erred
in granting extensions or striking his
affidavits or how he might have been
prejudiced as a result. We have
warned Gaines that unsupported
arguments will get him nowhere on
appeal.
Disputed material facts
1. Having: (1) refused to grant Pro Se
Plaintiff any type of time enlargement to respond
to the Defendants' Summary Judgment Motion, or
having failed to establish any type of deadline for
him to meet; and, (2) stricken all the Plaintiff's
"Answer Affidavits" - the District Court listed an
assortment of "Undisputed" facts, as alleged.
Ibid., PP. 28-38. Review these examples:
2. For "Fact 31," the District Court
wrote the following to deny relief to the Plaintiff.
Ibid., P. 34:
Under the current work schedule,
each individual shift supervisor is
responsible for making sure that the
Operations Specialist complete the
cleaning duties as assigned or as
11.
needed. Christie Hedges (sic) was
Gaines’ supervisor, and she did not
supervise Operations Specialists
Pate, Wood, or Lawson.
3. The Defendants shift schedule contra-
dicts the District Court's claim in 12. Ms. Hedge
supervised Mr. Lawson two days per week, and
the Plaintiff five days per week - during the same
time period. See Appellant's Reply Brief for 03-
1967, Appendix, "Plaintiff's Exhibits #342 &
345;" PP. 20 & 23.
4. For "Undisputed Fact #44," the Dis-
trict Court denied the Plaintiff relief on the fol-
lowing. P. 36:
Operation Specialists Karen Uhlen-
hake, a white female, and Operations
Specialists, James Lawson, a white
male, worked schedules comprised
largely of 7 p.m. - 7 a.m. and 11 p.m.
-7a.m. Uhlenhake and Lawson had
to visit the personnel office on their
own time if they had business that re-
quired an in-person visit.
5. When Pro Se Plaintiff attempted to
review personnel records on his own time, the
Defendants defeated the attempt. See Ap-
pellant's Reply Brief, Appendix, "Plaintiff's Ex-
hibit #343; P. 21. The Plaintiff worked the same
hours as Ms. Uhlenhake, and Mr. Lawson. Ibid..
PP. 20 & 23.
12.
6. For “Undisputed Fact #58," the
District Court wrote the following to deny the
Plaintiff relief. See Appendix C., P. 38:
WREP sets its wage level for all em-
ployees based on corporate guide-
lines that make no reference to race
or sex.
7. The Defendants contradict the above
statement, by maintaining a "Confidential File" on
the Plaintiff, where pay is based on "Race" and
"Sex." See Appellant's Reply Brief for 03-1967;
Appendix, "Plaintiff's Exhibit #334," P. 19.
8. In affirming the summary judgment
for the Defendants, the Seventh Court ignored all
the above. See Appendix A., PP. 1-8.
Conspiracy and fraud:
1. On May 1, 1967, one of the
Defendants Managers, Mr. R. Farnham, en-
couraged Pro Se Plaintiff, for example, to seek
input into changing shift schedules, by writing the
following. See Appellant's Reply Brief, Appen-
dix; "Plaintiff's Exhibit #140," P. 18:
Louis, thanks for your comments. I
know that some employees do not
care for the current shift arrange-
ments. My desire is to allow as
much employee input as possible
13.
into the decision-making. My only
criteria is that any shift arrangement
must be equitable to all affected em-
ployees, must meet the company's
needs for cross-training, and remain
within budget. Aside from this cri-
teria, the shifts could be rotating/
nenrotating, 12 hour/10 hour/8 hour,
5 shifts/4 shifts, and start on almost
any hour of the day.
2. After May 1, 1997, Mr. Farnham then
stood back and allowed “Managers” that he
supervised to give the Plaintiff letters of repri-
mand, on July 11, 1997, and January 11, 2K01; for
trying to get "Input" into changing shift
schedules. Ibid., PP. 8-11.
3. On or about January 10, 2K01, several
of the Defendants "Managers" agreed to give the
Plaintiff a letter of reprimand. The Plaintiff was
opposing a racially motivated work schedule at
the time. See Appendix C., PP. 31-2.
4. After receiving the second letter of
reprimand on January 11, 2K01, Pro Se Plaintiff
finally realized that the "Input" into changing
shift schedules, which Mr. Farnham previously
encouraged, was really for "Whites" only. The
Plaintiff is "Black." Ibid,
5. Having given the Plaintiff the above
letter of reprimand on January 11, 2K01; on
January 18, 2K01, the Defendants then blocked
the Plaintiff's attempt to timely use their internal
14.
grievance procedure to appeal the letter of repri-
mand. See Appellant's Reply Brief for 03-
1967, P. 9.
6. In the Summer of 2K02, a "White
Female," Ms. B. Miller, Operation Specialist,
was allowed to change her work schedule -
without receiving a letter of reprimand - unlike
the Plaintiff, "Black," who was given a letter of
reprimand on January 11, 2K01, for trying to get
"Input" into a racially motivated work schedule.
See Appendix C., P. 34., and Appellant's Reply
Brief for 03-1967; Appendix, "Plaintiff's Exhibits
#342 & 345," PP. 20 & 23.
7. Pro Se Plaintiff, for example, sought
relief on authority of the Federal Rules of Civil
Procedure, Rule 9.; and, Title 42 U.S.C., §§
1981 & 1983. See Complaint for . . ., 02-0595;
PP. 1 and 3.
8. The District Court denied relief on
the claimed that Pro Se Plaintiff failed to stated a
federal authority in which relief can be granted.
See Appendix C., PP. 52-3.
9. The Seventh Court affirmed, saying:
(1) Pro Se Plaintiff failed to produce any evi-
dence of "Fraud," and (2) the Defendants are not
"State Actors;" therefore, Title 42 U.S. C., §
1983 does not apply. Ibid., C., PP. 5.
Other relevant evidence:
1. On P. 4 of its "Order" of July 24,
2K03, the Seventh Court listed ten different acts
15.
sega ml,
against the Plaintiff that denied him work place
equality.
2. The above acts deal with: (1) the
Defendants' use of "Race" and "Sex" to determine
the Plaintiff's pay; (2) different certification
standards for "Whites," and "Blacks;" (3) shun-
ning Pro Se Plaintiff; (4) unequal work loads
against the Plaintiff; (5) pretextual access to
personnel records; (6) racially motivated work
schedules, to include "Input;" (7) working the
Plaintiff without pay, "Involuntary Servitude;" (8)
retaliatory restrictions on use of E-mail; (9) the
denial of the Defendants’ internal complaint
procedure to Pro Se Plaintiff; and, (10) the
Defendants‘ expressed intent to work the Plaintiff
when he is sick. Ibid. Pe
3. The Seventh Court maintained that
none of the above acts are adverse to the Plaintiff.
Ibid., P. 6., for example.
Defendants as "State Actors:"
1. On January 30, 1994, the City of
Indianapolis, Indiana decided to privatize its two
wastewater treatment plants: Belmont and South-
port; and, the Defendants were awarded the
contract. See Appeliant's Reply Brief, Appendix
"Defendants' Statement Of Material Facts Not In
Dispute;" P. 30. Also see Appendix C., P. 25.
2. AS a contractor, and like the
Indianapolis Department of Public Works, the
Defendants continued such duties as: (1) meeting
discharge limits; (2) filed discharge reports with
16.
Indianapolis, and the State of Indiana; (3)
bargained with AFSCME Local #725; (4), main-
tained the City's "No-Smoking Policy," for
example. Ibid.
3. The Defendants do not own the
wastewater treatment plants: Belmont and
Southport; they have not leased the related
building, equipment, and land; the Defendants
simply operate and manage Belmont and South-
port - like the Indianapolis Department of Public
Works prviously did. Ibid.
4. In its "Order" for July 24, 2K03, the
Seventh Court affirmed the District Court's
determination that the Defendants are not "State
Actors," and denied Plaintiff's claims under Title
42,U.S.C., § 1983. Ibid., A., P. 5.
Seventh Court's sanctions:
1. On July 24, 2K03, the Seventh Court
ignored all the above, and declared that the
Plaintiff's appeals are "frivolous." Ibid., P. 5.
2. The Seventh Court, at the request of
the Defendants, sanctioned Pro Se Plaintiff
$2,500.00, and proposed additional sanctions,
which include preventing the Plaintiff from filing
any papers with the Seventh Court for a two-year
period. Ibid., P. 7-8. Also see Appellees' Brief
for 03-1967, PP. 14-15 & 41.
3. The Seventh Court also wrote the
following: Ibid... P. 8:
Bf.
Pursuant to the notice and opportuni-
ty requirement set forth in Fed. R.
App. P. 38 and Cir. R. 38, Gaines
has fourteen (14) days from the filing
date of this order to file with the
court his written reasons opposing
the above proposed order. Failure to
- respond shall result in automatic in-
position of the proposed sanction.
4. Using Certified Mail, 7002-2410-
0007-8918-1291, Pro Se Plaintiff timely mailed
the following on August 6, 2K03, at 10:38 a.m.,
to the Seventh Court: (1) an introductory letter;
(2) Money Order #002-814-469 for $2,500.00;
and, (3) 30 copies of Appellant's Petition For En
Banc Hearing On Rule 38 Sanctions.
5. The Plaintiff's "Return Receipt” shows
that the Office of Clerk for the Seventh Court
received the above package on August 11, 2K03.
6. Since the time of August 11, 2K03,
the Docket Sheets for... 02-4289 & 03-1967 do
not reflect the above filing and/or the $2,500.00
payment, which were timely mailed. See 1% 4.,
above.
7. The Docket Sheets, by comparison,
reflect all the Defendants’ filings for cases 02-
4289 & 03-1967. See referenced Docket Sheets.
8. All the litigation that have come
before the federal court, under Gaines v. White
River Environmental Partnership, et al., have
been provoked by the Defendants. See P. 1.
18.
Administrative procedure:
1. EEOC currently uses "Form 5," for the
charging party to state a complaint. See
Appellant Brief for 03-1967, Appendix; P. 44, for
example, which features EEOC Charge #240-A12-
457, dated August 6, 2K01..
2. In the "Name" block or space for
identifying a "Respondent," the EEOC repre-
sentative wrote "White River Environmental,"
and nothing more, because there was not enough
remaining space to write the names of the re-
aining "Respondents." Note that the word,
"Partnership" was even omitted, for spacial
reasons. Ibid.
3. The District Court rejected the above
reasoning in 12. See Appendix C., PP. 41-2.
4. When each suit was filed in a district
court, the names of the "Respondents," to include
"Managers" were listed. See Appellant's Brief
for 03-1967, PP. 1-2, for example.
5. In its "Order" for July 24, 2K03, the
Seventh Court denied relief by writing the fol-
lowing. See Appendix A., P. 5:
As to Gaines' remaining discrimina-
tion claims, the court dismissed
them as to all defendants except
White River because only White
River was named as the respondent
in any of Gaines' EEOC charges.
19.
ARGUMENT
Summary: On the one hand, the Defendants
have consistently provoked litigation in the area
of "Equal Employment Opportunity." On the
other hand, the Defendants have been able to: (1)
escape all punishment; and, (2) used the Lower
Courts to sanction Pro Se Plaintiff for trying to
defend himself against the Defendants. Through
the use of "Double-Standards" or "Inconsisten-
cies," the Lower Courts have denied the Plaintiff-
due process, and equal protection of the law. The
Plaintiff's Summary Judgment Motion has been
denied in error; he has been severely sanctioned
in error, - and the review of the Supreme Court is
needed, so that: (1) the above errors will not be.
allowed to stand against the Plaintiff; (2) the
Lower Courts will be more able to enter decisions
that are more "Consistent" with those of the
Supreme Court, and the intent of Congress.
I. The Lower Courts Have Use A System Of
"Double-Standards" To Deny Pro Se Plaintiff
Due Process & Equal Protection Of The Law
A. Legal standards
1. United States Constitution, the Fifth and
Eighth Amendments; Title 29, U.S.C., 623(a) &
623(d); Title 42, U.S.C., 88 1981, 2000e-2(a),
2000e-2(k)(c)(2), 2000e-2(m), and 2000e-3(a);
the Federal Rules of: (1) Appellant Procedure,
Rules 35 & 38; (2) Civil Procedure, Rule 56; and,
—— Rule 406. See Appendix E., PP.
-79,
20.
2. Court cases:
Anderson v. Liberty Lobby, Inc.,
106 S. Ct. 2505; 1986:
2. Federal Civil Procedure
Substantive law will identify which
facts are material for purpose of sum-
mary judgment, as only disputes over
facts that might affect the outcome of
suit under the governing law will prop-
erly preclude the entry of summary
judgment; factual disputes that are ir-
relevant or unnecessary will not be
counted. Federal Rules Civ. Proc.
Rule 56(c), 28 U.S.C. A.
Harris v. Forklift Systems, Inc.,
126L Ed 2d 295; 1993:
Civil Rights § 7.6, 7.7
_ ...3 Title VII comes into play, however,
before the harassing conduct leads to a
nervous breakdown, and (2) ..., the
very fact that the discriminatory con-
duct was so severe or pervasive that it
created a work environment abusive to
employees because of their race, gen-
der, religion or national origin offends
Title VII's broad rule of workplace
equality.
Gilbert v. Homar,
138 L Ed 2d 120, 121; 1997:
Constitutional Law
4. Due process is not a technical con-
ception with a fixed content unrelated
to time, place, and circumstances;
rather, it is flexible and calls for such
procedural protection as the particular
situation demands.
B. Argument: examples of judicial double-
standards that wrongfully favor the Defendants,
and wrongfully affected the outcome: (1) see
"Motions to amend and summary judgments, PP.
4-7; (2) see "Time enlargements & summary
judgments, PP. 7-9; (3) see "Affidavits & sum-
mary judgments, PP. 9-11; (4) see "Disputed
material facts," PP. 11-13; (5) see "Conspiracy
and fraud," PP. 13-15; (6) see "Other relevant
evidence," PP. 15-16. On the one hand, the
Plaintiff has been, and continues to be, denied
"Work Place Equality." On the other hand, the
Plaintiff has been denied the constitutional right
to a "Fair Judicial Procedure," which serves the
interest of the Defendants. These injustices
cannot be allowed to stand.
II. When Indianapolis Hired The Defendants
To Manage & Operate Its Wastewater
Treatment Plants - The Defendants
Became "State Actors"
22.
A. Legal standards
1. Title 42, U.S.C., § 1983, and the Federal
Rules of Evidence, Rule 406. See Appendix E.,
PP. 75 & 79.
2. Court cases:
Shirley v. State National Bank Of Con-
necticut, 493 F.2d 739, 740; 1974:
2. Civil Rights
Within meaning of civil rights statue a
private person may act under color of
law. 42 U.S.C.A., § 1983.
Reeves v. Sanderson Plumbing Products,
Inc., 147 L Ed 2d 105, 110; 2001:
Civil Rights § 7.5 - employment
12. The ultimate question in every em-
ployment discrimination case involving
a claim of disparate treatment is
whether the plaintiff was the victim of
intentional discrimination.
Brentwood Academy v. Tennessee
Secondary School Athletic Association, et al.,
148 L Ed 2d 807, 807, 810-11; 2001:
Decision: Tennessee state association
23.
incorporated to regulate athletic com-
petition among state's public and private
secondary schools held to be state actor
for purpose of Federal Constitution's
Fourteenth Amendment. P. 807.
Civil Rights § 26...,
5a, 5b. If a derendant's conduct satis-
fies the state-action requirement of the
Federal Constitution's Fourteenth
Amendment, then the conduct also con-
stitutes action under color of state law
for purpose of 42 USCS § 1983.
P. 810.
Constitutional Law § 520...
11. Government coercion or en-
couragement may, under some circum-
stances, justify characterizing an ob-
tensibly private action as public in-
stead, for purpose of the Federal Con-
Stitution's Fourteenth Amendment.
Ibid., P. 811.
McCormick v. City of Chicago,
30 F.3d 319 (7th Cir. 2000)
5. Federal Civil Procedure
Pro se complaints are to be liberally
construed and not held to the stringent
standards expected of pleadings drafted
by lawyers.
24.
Curtis 1000, Inc., v. Suess,
24 F.3d 941 (7th Cir. 1994)
3. Torts
Tort of intentional interference with
advantageous business relations no
longer requires that relation interferred
with be one emboided in formal con-
tract. -
Kolstad v. American Dental Ass'n,
119 S. Ct. 2118, 2119; 1999:
6. Damages
Egregious or outrageous acts may serve
as evidence supporting inference of
evil motive required to impose punitive
damages.
B. Agrument: One, a fair review of the
evidence showns that the Defendants are "State
Actors," which includes their ability to affect
commerce. See "Defendants as 'State Actors,"
PP. 16-7. Two, the Defendants have: (1)
conspired and committed fraud against the
Plaintiff; (2) willfully provoked litigation in the
federal courts; (3) caused Pro Se Plaintiff to
suffer an "Irreparable Injury;" and, (4) sought
and received severe sanctions against the
Plaintiff. Three, having willfully engaged in the
foregoing acts - the Defendants now hope to
escape all financial responsibility to the Plaintiff,
by claiming that they are not "State Actors." or
25.
such a claim is being made, in their behalf, by the
"Lower Courts." Ibid. Also see PP. 1-19.
III. The Seventh Court Has Sanctioned
Pro Se Plaintiff In "Bad Faith"
A. Legal standards
1. See "Legal standards," P. 20.
2. See these previously cited court cases:
Gilbert v. Homar, P. 22; Reeves v. Sanderson
Plumbing Products, Inc., P. 23; and, McCormick
v. City of Chicago, P. 24.
B. Argument: One, the "Lower Courts” look
to the Defendants for legal guidance, instead of
looking to the Supreme Court for the same, or
following the intent of Congress - as it applies to
this case. See PP. 17-20, for example. Also
see "Entry" on PP. 5-6. Two, the Seventh
Court's sanction represents another "Double-
Standard” against the Plaintiff, which cannot be
allowed to stand.
IV. EEOC "Form 5" Should Be Revised Or
Declared "Unconstitutional," And All The
Defendants Named In The Complaint Should
Be Retained, To Include "Managers"
A. Legal standards.
1. See relevant legal authority, P. 20.
26.
2. See Anderson y. Liberty Lobby, Inc., P.
21, and Gilbert v. Homar., P. 22; and, Mc-
Cormick v. City of Chicago, PP. 24-5.
B. Argument: One, in its present form,
EEOC "Form 5" is unlawfully bias towards em-
ployers, because the space for identifying the
"Name" of an employer is so small that it
discourages or prevents the naming of more than
one or two "Respondents." Two, even though the
Seventh Court has said that "Pro Se complaints
are to be liberally construed," this standard was
contradicted by the Lower Courts - when they
dismissed the names of "Defendants" that did not
appear in the "Name" box on EEOC "Form 5."
Three, the "Lower Courts" have acted in bad faith,
or in error; or, EEOC "Form 5" is in error. See
Administrative Procedure, P. 19.
V. Since The Defendants Have Provoked All
Ligitation, And Since The Seventh Court Has
Sanctioned Pro Se Plaintiff $3,600.00 In
"Bad Faith;" The Plaintiff Is All The More
Entitled To Be Paid For An "Irreparable
Injury" That The Defendants Willfully Caused
A. Legal standards:
1. See relevant "Legal Standards" on P. 1.
2. See relevant courts cases; PP. 21-26.
B. Argument: One, the Plaintiff is entitled
27.
to "Equal Employment Opportunity." Two, based
on the Plaintiff's opposition to the Defendants’
unlawful employment practices - the Defendants
caused the Plaintiff to suffer an on-the-job,
"Irreparable Injury," on June 2, 1999, while he
was actively engaged in "Discovery." Three, the
Plaintiff is entitled to be paid, too! See PP. 4-20.
VI. The Defendants Have Engaged In
Conspiracy, And Fraud Against
Pro Se Plaintiff
A. Legal standards
1. See Title 42 U.S.C § 623(d); Title 42 U. S.-
C., $8 1981, 1981(c), 1983, 2000e-2(a); and,
20003-3(a); the Federal Rules of Civil Procedure,
Rule 9b; and, the Federal Rules of Evidence, Ruie
406. See Appendix E., PP. 74-80.
2. Also see these court cases: (1) Anderson v.
Liberty Lobby, Inc., P. 21; Reeves v. Sanderson
Plumbing Products, Ind., P. 23; McCormick v.
City of Chicago, P. 24; Curtis 1000, Inc., v.
Suess, P. 25; and, Kolstad vy. American Dental .
Ass'n, P. 25.
B. Argument: One, see PP. 13-15; PP. 16-
17; and, PP. 17-19. Two, the Defendants'
"Conspiracy & Fraud" against Pro Se Plaintiff
have denied him equal employment opportunity,
and subjected him severe sanctions before the
Seventh Court. These injustices against the
Plaintiff cannot be allowed to stand!
28.
Conclusion
The "Material Facts" in this case fairly and
sufficiently show that: (1) Pro Se Plaintiff has
been denied "Equal Employment Opportunity;”
(2) the right to a "Fair Judicial Procedure;" and,
(3) the review of the Supreme Court is needed, in
order to prevent the foregoing injustices from
Standing against Pro Se Plaintiff. Therefore, and
on the foregoing authority, as stated on PP. 20-
28; grant the following relief: (1) reverse the
summary judgment fir the Defendants; (2)
declare the Defendants to be "State Actors;" (3)
direct the Seventh Court to return $3,600.00 to the
Plaintiff, which were wrongfully paid as fines; (4)
award the requested monetary damages against
each Defendant and "Manager" that are named in
the suit; (5) declare EEOC "Form 5" to be uncon-
stitutional, or direct EEOC to revise it, so that all
the names of the "Respondents" can be readily
listed; and, (6) award the Plaintiff fair monetary
damages for an "Irreparable Injury" that the
Defendants have previously and willfully caused
him to needlessly suffer!
Sincerely,
ame aa
IS F. GAI ; October 13, 2K03
Pro Se
29.
APPENDIX
30.
TABLE OF APPENDIX
APPENDIX:
A:
Seventh Court
District Court (... 1524)
District Court (... 0595)
Other Relevant Rulings
Legal Authority
PAGE
14,
62.
73.
APPENDIX A: Seventh Court's Order
UNITED STATES COURT OF APPEALS
For The Seventh Circuit
Chicago, Illinois 60604
Submitted June 24, 2003
Decided July 24, 2003
Before
Hon. W. J. BAUER, Circuit Judge
Hon. J. L. COFFEY, Circuit Judge
Hon. D. A. MANION, Circuit Judge
Appeal from the
United States Dis-
tricb>Court for the
Southern District
of Indiana, India-
LOUIS F. GAINES,
J
)
WHITE RIVER ENVIRON- napolis Division.
]
]
]
Plaintiff-Appellant,
No. 02-4289 v.
MENTAL PARTNER-
SHIP,
Defendant- Appellee.
No. 02 C 1524
David F. Hamil-
ton, Judge
ishsieiblieeaaamaaadamene nate ]
LOUIS F. GAINES, ] Appeal from the
Plaintiff-Appellant, ] United States Dis-
] trict Court for the
No. 03-1967 v. _ ] Southern District
] of Indiana, India-
WHITE RIVER ENVIRON- | napolis Division.
MENTAL PARTNERSHIP,
IWC RESOURCES COR- ij No. 02 C 595
PORATION, SUEZ, et al.,
Defendants-Appellees. ] John D. Tinder,
Judge.
ORDER
The following are before the court:
1. DEFENDANTS-APPELLEES' MOTION TO
DISMISS PLAINTIFF-APPELLANTS' APPEAL
AS MOOT, filed on May 5, 2003, in No. 02-4289
by counsel.
Nos. 02-4289, 03-1967 Page 2
2. APPELLANT S RESPONSE BRIEF, filed on
June 5, 2003, in No. 02-4289 by appellant Louis F.
Gaines, proceeding pro se.
Louis Gaines, an African American male in
his 50s has a history of suing his employer,
appellee White River Environmental Partnership
("White River"), for employment discrimination
and retaliation, and then filing frivolous appeals
from the district court's order in those cases. See
Gaines v. White River Envtl. P'ship, et al., No.
02-3849, 2003 WL 1827209 (7th Cir. 2003) (re-
viewing Gaines’ litigation history). We have
admonished Gaines repeatedly to stop filing
frivolous appeals and sanctioned him twice for
failing to heed our warnings. Id. at *3.
These appeals are more of the same; they
arise from Gaines' third and fourth lawsuits
against White River. In his third lawsuit Gaines
8
alleged that White River and three other de-
fendants discriminated and retaliated against him
in violation of various amendments to the
Constitution, 42 U.S.C. §§ 1981 and 1983, Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e, and the Age Discrimination in Employment
Act, 29 U.S.C. § 621. He also asserted claims
for "conspiracy" and "fraud." Gaines' com-plaint
in the third suit is based on three charges he filed
with the Equal Employment Opportunity
Commission ("EEOC"). In his EEOC charges
Gaines alleged that White River (1) determined
its employees’ pay based on their race and sex, (2)
required Gaines but not Caucasian employees to
substantiate that he was certified to perform his
job, (3) ordered supervisors to avoid written
communication with Gaines due to his pending
legal action against White River, (4) assigned him
"cleaning duty" more often than Caucasian
employees, (5) required him to use personal time
to visit the personnel office, (6) refused his
requests to change his work schedule while
granting Caucasian employees' requests, (7)
refused to pay him for "confined space training,"
(8) restricted his e-mail privileges without
adequate explanation, (9) denied his internal
EEOC complaints, and (10) expressed willing-
ness to require him to work when he is sick. In
the fourth lawsuit, Gaines filed a complaint
virtually identical to the one in his third lawsuit,
except that it is based on only one of the three
charges from that third lawsuit.
The district court dismissed the fourth
lawsuit as duplicative and granted summary
judgment in favor of the appellees in the third
lawsuit. The court concluded that Gaines' claims
4.
in one of his EEOC charges were barred by res
judicata because they were disposed of in Gaines
v. White River Envtl. P'ship, et al., IP 01-1158-
H/K (S.D. Ind. Sept. 30, 2002), aff'd, No. 02-
3849, 2003 WL 1827209 (7th Cir. 2003). As to
Gaines' remaining discrimination and retaliation
claims, the court dismissed them as to all
defendants except White River because only
White River was named as the respondent in any
of Gaines' EEOC charges. As to White River, the
court concluded that Gaines failed to establish his
prima facie case and presented no evidence of
pretext. The court rejected Gaines' conspiracy and
fraud claims because he failed to produce a "shred
of evidence" that the appellees either agreed
Nos. 02-4289, 03-1967 Page 3
to engage in any illegal activity or made any
misrepresentations on which Gaines relied.
Finally, the court rejected Gaines' § 1983 claims
because none of the appellees are state actors.
Gaines appealed in both cases, and we con-
solidated the appeals for disposition on our own
motion. 3
Gaines' appeals are frivolous. As to Gaines'
appeal from the third suit, his brief merely
recounts his past litigation against White River,
reasserts his claims, and contains a conclusory
assertion that the district court unfairly ad-
vantaged White River by (1) granting White River
extensions of time to respond to Gaines' summary
judgment motion while denying Gaines any exten-
sions; and (2) allowing White River to file
affidavits while striking those Gaines submitted.
Gaines offers no explanation why he thinks the
&
district court -erred in granting extensions or
striking his affidavits or how he might have been
prejudiced as a result. We have warned Gaines
that unsupported arguments will get him nowhere
on appeal. See Gaines, No. 00-3802, 2001 WL
298592 at *1. Additionally, Gaines fails to
identify any error in (or even mention) the district
court's order granting summary judgment, which
is not surprising given that we have already
specifically explained to him why much of the
conduct he complaints of is not actionable. See id.
(allegations relating "to e-mail abuses and to
decisions about shift rotations and _ training
sessions" do not constitute adverse employment
actions); Gaines, No. 02-3849, 2003 WL 1827209
at *3 (explaining that Gaines has no § 1983 claim
against White River because White River is not a
state actor).
As to Gaines’ appeal in the fourth lawsuit, he
does not dispute that his complaint was du-
plicative. Instead, he argues that he had to file it
because the district court refused to allow him to
amend his complaint in the third lawsuit when the
EEOC issued a right-to-sue notice on one of the
charges in that complaint. This contention is
devoid of merit. A district court's denial of a
motion to amend, even if erroneous, does not
justify the filing of the proposed amendment as a
new lawsuit. And we note that the record shows
that the district court denied Gaines leave to
amend because he requested it before the EEOC
issued the right-to-sue notice and without
identifying any new claims to be added. After the
EEOC issued the notice, Gaines never renewed his
request to amend.
In short, Gaines has completely. disregarded
our prior sanctions and repeated warnings in
pursing this appeals, which serve only to rehash
his failed claims and waste this court's valuable
resources. Accordingly, the district court's orders
are AFFIRMED, and Gaines is sanctioned for
filing frivolous appeals in the amount of $2,500.00
payable to the clerk of this court within 14 days of
this order. Additionally, because our prior
warnings and sanctions have been ineffective to
deter Gaines from frivolous filings, we propose to
the following order:
Nos. 02-4289, 03-1967 Page 4
Louis Gaines, individually, with others, or
through a representative, is prohibited from filing
any papers in this court, excluding criminal and
habeas corpus proceedings; until the following
requirements are met: Gaines must file a "Motion
Pursuant to Court Order Seeking Leave to File"
and attach
(a) a copy of the proposed paper to be filed:
(b) a copy of this order:
(c) proof of payment of the $2,500.00 sanc-
tion imposed by this court in case Nos. 02-4289
and 03-1967 in the form of a copy of a certified
check or money order, a Signed receipt for the
check or money order by the proper recipient, and
a sworn affidavit by Gaines that full payment has
been made;
(d) and a sworn affidavit by Louis Gaines
certifying that the matters raised in the proposed
ts
filing are not frivolous and have not been raised
by him in prior suits.
Gaines is authorized to submit to this court, no
earlier than two years from the date of this order, a
motion to modify or rescind the order. If Gaines
disregards the order we enter today, he will be
subject to contempt charges.
Pursuant to the notice and opportunity
requirement set forth in Fed. R. App. P. 38 and
Cir. R. 38, Gaines has fourteen (14) days from the
filing date of this order to file with the court his
written reasons opposing the above proposed
order. Failure to respond shall result in automatic
imposition of the proposed sanction. See Ver-
done v. Circuit Court of Taylor County, 73 F.3d
669, 674-75 (7th Cir. 1995) (imposing
substantially identical sanctions on appellant for
repeatedly filing of frivolous appeals); see also
Perry v. Pogemiller; 16 F.3d 138, 140 (7th Cir.
1993) ("[FJederal courts possess the inherent
power and constitutional obligation to prevent
abuse of the judicial process by a litigant who
engages in a pattern of frivolous litigation.").
Finally, White River advises us that Gaines
filed yet another lawsuit against it on May 16,
2003, case No. 03 CV 723. White River is
DIRECTED to provide a copy of this order to the
district court in that case. White River's motion to
dismiss in case No. 02-4289 is DENIED as moot.
APPENDIX B: District Court (... 1524)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
LOUIS F. GAINES,
Plaintiff,
Vv. 1:02-cv-1524-DFH
WHITE RIVER EN-
VIRONMENTAL PART-
NERSHIP, et al. ,
Defendants.
ENTRY
"As part of its general power to administer
its docket, a district court may stay or dismiss a
suit that is duplicative of another federal court
suit." Curtis v. Citibank, N.A., 226 F.3d 133,
138 (2d Cir. 2000). The claims asserted in this
action are or could be asserted in Gaines v. White
River Environmental Partnership, et al., No. IP
02-595-C-T/K. Accordingly, the defendants’ mo-
tion to disviiss is granted insofar as based on the
argument that this duplicative action should not
be permitted to proceed. The court does not
reach any of the other arguments presented by the
defendants in their motion to dismiss.
Judgment dismissing this action without prejudice
shall now issue.
So ordered.
S/ DAVID F. HAMILTON, Judge
United States District Court
Date: 11/27/02 -
11.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
LOUIS F. GAINES,
Plaintiff,
WHITE RIVER EN-
VIRONMENTAL PART-
)
)
v. ) 1:02-cv-1524-DFH
)
NERSHIP, et al. , )
JUDGMENT
This court, having this day made its Entry,
IT IS NOW ADJUDGED that this cause of action
is dismissed without prejudice.
S/ DAVID F. HAMILTON, Judge
United States District Court
Date: 11/27/02
Copies to:
Louis F. Gaines
5337 N. College Avenue
Indianapolis, IN 46220
Alan McLaughlin
Eric Papier
Baker & Daniels
300 N. Meridian St., Suite 2700 -
Indianapolis, IN 46204
13.
iat _—
APPENDIX C: District Court (... 0595)
14.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
LOUIS F. GAINES, - )
Plaintiff
v. IP 02-595-T/K
WHITE RIVER ENVI- )
RONMENTAL PART- )
NERSHIP, et al., )
)
)
Defendants
ENTRY DISCUSSING SELECTED
PENDING MOTIONS
I.
The defendants' motion to extend deadline,
Filed on August 30, 2002, is granted. This means
that the defendants' filing of September 3, 2002, is
deemed to be a timely response to the plaintiff's
motion for summary judgment.
IT.
A.
The court has considered the following
motions to strike, filed by the defendants.
Motion to strike answer affidavit to
defendants' motion for summary judgment, filed
December 24, 2002.
Motion to strike plaintiff's response
affidavit to the affidavits of C. Hedge and G.
Suever, filed January 3, 2003.
Motion to strike plaintiff's response
affidavit to the affidavit of Pam Wolsiefer-Leak,
filed January 17, 2003.
Motion to strike plaintiff's response
affidavit to the affidavit of George Russell, filed
February 19, 2003.
Motion to strike plaintiff's response
affidavit of Rick Farnham, filed March 10, 2003.
B.
The motions to strike itemized in part II. A.
of this Entry are granted. The reasons for this
ruling are these.
First, the affidavits to which the above ~
motions are directed were not timely submitted in
relation to the briefing of the cross-motion for
Summary judgment, yet as noted in Spears v.
City of Indianapolis, 74 F.3d 153, 157 (7th Cir.
1996): "We live in a world of deadlines ... A good
judge sets deadlines, and the judge has a right to
assume that the deadlines were honored. The flow
of cases through a busy district court is aided, not
hindered, by adherence to deadlines." Materials
submitted after the expiration of a deadline need
16.
Ee ee
not be considered. Gonzalez v. Ingersoll Mill-
ing Machine Company, 133 F.3d 1025, 1030 (7th
Cir. 1998); Lac Du Fambeau Band of Lake Su-
perior Chippewa Indians y. Stop Treaty Abuse -
Wisconsin, Inc., 991 F.2d 1249, 1257 (7th Cir.
1993) ("[A] decision to disregard all materials
submitted after a reasonable filing deadline is
certainly not an abuse of discretion because it
allows the district court to preserve the moving
party's right to respond to the resisting party's
argument and to decide the Summary judgment
motion in a timely fashion.") (citation omitted).
Second, those affidavits are insufficient
under Rule 56(e) insofar as they rest on
Speculation, insofar as they present matters
outside the issues in this action, insofar as they
are not based on Mr. Gaines’ personal knowledge,
and insofar as they present legal conclusion,
rather than facts. Cusson-Cobb y. O'Lessker,
953 F.2d 1079, 1081 (7th Cir. 1992); Pfeil y.
Rogers, 757 F.2d 850, 862 (7th Cir. 1985), cert.
denied, 475 U.S. 1107 (1986).
C.
The defendants' motion to Strike filed on
December 3, 2002, directed to the plaintiff's
response to the defendants' motion for s
judgment, is denied with respect to the issue of
the timing of that response and is granted to the
extent that the court will not consider material in
that response which do not satisfy the re-
quirements of Rule 56(e).
17.
ITT.
The defendants' motion to strike filed on
September 25, 2002, is granted to the extent that
plaintiff's affidavit of September 10, 2002, to
which the motion to strike filed on September 25,
2002, is directed, is insufficient under Rule 56(e)
because it rests on speculation, it presents matters
outside the issues in this action, and it presents
legal conclusions, rather than facts. The
defendants' request to strike the affidavit of
September 10, 2002, in its entirety based on its
assertedly scandalous content is denied.
IT IS SO ORDERED.
S / JOHN D. TINDER, Judge
United States District Court
Date: 3/14/2003
Copies to:
Louis F. Gaines
5337 N. College Avenue
Indianapolis, IN 46220
Alan McLaughlin
Eric Papier
Baker & Daniels
300 N. Meridian St., Suite 2700
Indianapolis, IN 46204
18.
ee ee
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
LOUIS F. GAINES,
Plaintiff,
vs. IP 02-595-T/K
WHITE RIVER ENVI-
RONMENTAL PART-
NERSHIP, et al.,
)
)
)
)
)
)
)
)
‘
Defendants. )
ENTRY DISCUSSING ADDITIONAL
SELECTED PENDING MOTIONS
Plaintiff Gaines' motion for a favorable
summary judgment, or for appropriate summary
judgment relief against the defendants and a
Supporting affidavit, both filed on July 29, 2002,
recites that he was asked to work Overtime on
June 27, 2002, and on July 10, 2002. Gaines .
contends that these requests to have him work
Overtime were a pretext to endanger him by
having him work a 16-hour day.
On August 16, 2002, the defendants filed a
motion to strike Gaines filing of July 29, 2002, on
the basis that Gaines objection to overtime fails to
state a claim, that through his objection he
attempts to improperly add a claim without
obtaining leave to amend his complaint, and that
such an additional claim would in any event be
legally insufficient because, to the extent based
on Title VII of the Civil Rights Act of 1964 or the
Age Discrimination in Employment Act, Gaines
failed to exhaust his administrative remedies. The
court finds that each basis for the defendants’
motion to strike has merit. Accordingly, the
plaintiff's motion for a favorable summary
judgment, or for appropriate summary judgment
relief against the defendants, filed on July 29,
2002, is denied, the defendants’ motion to strike
filed on August 16, 2002, is granted, and no claim
relating to Gaines assigned or asked to work
overtime in July or July 2002 shall be considered
part of this action.
II.
On August 8, 2002, Gaines filed a motion
for appropriate summary judgment relief, and an
affidavit in support. Through this motion and
affidavit, Gaines seeks to add claims of alleged
acts of evasiveness and retaliation. These
allegations are the following: in January 2002, he
want not required to attend weekly meetings that
only white managers attended; he was forced to
work sixteen hours days on July 28, 2002, and
August 5, 2002; on August 5, 2002, he came to
work eight hours earlier than normal thinking he
was supposed to work a sixteen hour day, not
20.
knowing that the work schedule had been
changed, forcing him to go home and return to
work eight hours later; he did not receive a
prompt response to his inquiry whether the
bereavement leave policy applied to daughter-In-
laws or son-in-laws, so that he did not know that
such leave would in fact be granted until after he
took the leave; and in August 2002 he was
required to show proof of his wastewater
treatment plant operator certification, when such a
requirement was not enforced against white
operators.
On August 28, 2002, defendants filed a
motion to strike the August 8, 2002, motion and
affidavit. The defendants argue that Gaines
improperly attempting to expand the claims in this
action, contrary to the court's Statement in the
Entry of July 9, 2002, that "the parties are free to
seek summary judgment as to the claims or
defenses which are presented by the pleadings,
but are not free to use the summary judgment
Process as a substitute for actual pleadings in
order to modify the claims or defenses in the
case." Defendants argue that the Claims that
Gaines has been required to provide proof of his
certification was asserted in Gaines v. White
River Environmental Partnership, et al., IP01-
1158-H/K (S.D. Ind. September 30, 2002), and
again in this action. Defendants also argue that
Gaines has filed to exhaust his administrative
remedies with respect to the remaining claims
asserted in Gaines' August 8, 2002, motion.
With the exception of the certification claim,
none of the allegations asserted in Gaines' August
8, 2002, motion were included with an EEOC
21.
charge of discrimination or retaliation before this
action was filed. This circumstance precludes the
court from considering such claims. Cheek v.
_ Western and Southern Life Ins. Co., 31 F.3d 497,
500 (7th Cir. 1994) ("a Title VII plaintiff cannot
bring claims in a lawsuit that were not included in
her EEOC charge") (citing Alexander v. Gard-
ner-Denver Co., 415 U. S. 36, 47 (1974)). Even
if Gaines had timely filed an EEOC charge
concerning these allegations, the court finds that
none of these alleged acts subjected Gaines to an
adverse employment action, which is a required
element of a retaliation claim. Stone v. City of
Indianapolis Public Utilities Div., 281 F.3d
640, 644 (7th Cir. 2002). In addition, the
certification claim is duplicative of that brought
in another lawsuit and will not be relitigated here.
The plaintiff's motion for appropriate summary
judgment relief, filed on August 8, 2002, is
denied, and the defendants’ motion to strike
plaintiff's motion for appropriate summary
judgment relief and plaintiff's affidavit in support,
filed on August 28, 2002, is granted.
III.
The plaintiff's motion for a favorable
summary judgment as a matter of law, or grant
other appropriate and fair relief, filed on
September 10, 2002, seeks relief based, in part, on
his contention that the defendants' motion for
summary judgment, filed on September 3, 2002,
was not timely filed. In light of the court's ruling
in Part I of the Entry Discussing Selected Pending
Motions issued on March 14, 2003, finding that
"the defendants’ filing on September 3, 2002, is
22.
_- —e-, OO ee eee rea
deemed to be a timely response to the plaintiff's
motion for summary judgment," and because the
court finds that no other relief sought by the
plaintiff through his September 10, 2002, motion,
is warranted, that motion is denied.
IT IS SO ORDERED.
S/JOHN D. TINDER, Judge
United States District Court
Date: 3/26/2003
Copies to:
Louis F. Gaines
5337 N. College Avenue
Indianapolis, IN 46220
Alan McLaughlin
Eric Papier
Baker & Daniels
300 N. Meridian St., Suite 2700
Indianapolis, IN 46204
23.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
LOUIS F. GAINES,
Plaintiff
2"
WHITE RIVER ENVIRON-
MENTAL PARTNERSHIP,
et al.,
)
)
)
vs. ) IP 02-595-T/K
)
)
)
Defendants
ENTRY DISCUSSING CROSS MOTIONS
FOR SUMMARY JUDGMENT AND DI-
RECTING ENTRY OF FINAL JUDGMENT
For the reasons explained in this Entry, the
plaintiff's many claims in this action for
employment discrimination do not survive the
_defendants' motion for summary judgment, which
must be granted, and the plaintiff's own motion
for summary judgment must be denied.
I. Background
A. Parties
The plaintiff in this action is Louis Gaines,
ee
who has been employed for many years by the
White River Environment Partnership ("WREP"),
who operates water treatment facilities in Marion
County Indiana.
The defendants are WREP and its individual
partners, those being IWC Resources, United
Water Services and Lyonnaise American Holding,
a wholly-owned U.S. subsidiary of Suez Ly-
onnaise Des Eaux.
B. Claims
Gaines' complaint, filed on April 19, 2002,
asserts claims pursuant to various provision of the
United States Constitution, those being the First,
Fifth, Eighth, and Thirteenth Amendments. He
also alleges a claim for "conspiracy" and "fraud."
His statutory claims are brought pursuant to the
(1) the Age Discrimination in Employment Act
("ADEA"), (2) Title VII of the Civil Rights Act of
1964 ("Title VII"), (3) 42 U.S.C § 1981, and §
1983.
Gaines seeks 2 million dollars in punitive
damages from each of the four defendants, and 10
thousand dollars from each of four individuals
who are described as "managers," but who are not
named as defendants.
C. Procedural Posture
After Gaines' complaint was filed, the
defendants appeared and filed their answer. Some
effort was made to expand the claims in the case,
but the effort was never formalized and hence was
not effective. Various non-disposive motions
25.
have been resolved through separate rulings.
All parties have now moved for summary
judgment, and those motions are ripe for ruling.
See Anderson v. Liberty Lobby, Inc., 447 U.S.
242, 255 (1986). The purpose of Rule 56 is to
"enable a party who believes there is no genuine
dispute as to a specific fact essential to the other
side's case to demand at least one sworn averment
of that fact before the lengthy process of litigation
continues." Lujan v. National Wildlife Federa-
tion, 497 U.S. 871, 888 (1990). Pursuant to Rule
56(c) of the Federal Rules of Civil Procedure, a
motion for summary judgment shall be granted "if
the pleadings, depositions, answers to _ inter-
rogatories, and admissions on file, together with
the affidavits, if any, show that there is no
genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter
of law." A "material fact" is one that "might
affect the outcome of the suit." Anderson Vv.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
"Factual disputes are ‘genuine’ only ‘if the evi-
dence is such that a reasonable jury could return a
verdict for the [nonmovant]." Oest v. Illinois
Dep't of Corrections, 240 F.3d 605, 610 (7th Cir.
2001) (quoting Anderson, 477 U.S. at 248)*
* Through the process described above,
"summary judgment serves as the ultimate screen
to weed out truly insubstantial lawsuits prior to
that." Crawford - El v. Britton, 523 U.S. 574,
600 (1998). Although the moving party must
initially identify the basis for its contention that
no genuine issue of material facts exists, the
26.
nonmoving party cannot rest on his pleadings, but
must produce his own evidence. Hughes vy.
Joilet Correctional Ctr., 931 F.2d 425, 428 (7th
Cir. 1991). The burden is therefore on the non-
movant to set forth "specific facts showing that
there is a genuine issue for trial." Eiland v.
Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998)
(quoting Fed. R. Civ. P. 56(e)).
Because the defendants seek the entry of
Summary judgment, and because Gaines is
proceeding wihout counsel, the notice required by
Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982),
and by Local Rule 56.1, was issued. Through this
notice, Gaines was notified of the nature of the
motion for summary judgment, the proper manner
in which to respond, and the consequences of
failing to respond. This information assures that
Gaines' claims receive the fair and meaningful
consideration to which they are entitled, within
the scope of applicable rules of procedure and, of
course, the substantive law. Gaines has responded
to the defendants’ motion with a discusion of his
claims and with a submission of numerous
documents.
The court notes that a substantial portion of
material presented by Gaines in Support of his
motion for summary judgment relates to
background information and to claims asserted in
two prior lawsuits brought against WREP. Even
if some of these matters could be thought to be
disputed, such a dispute over irrelevant or
unnecessary facts does not preclude s
judgment. See Hardin v. S.C Johnson & Son,
Inc., 167 F.3d 340, 344 (7th Cir. 1999). Facts are
taken from the evidentiary record here only
insofar as they are "material" as determined by
the substantive law. See McGinn vy, Burlington
27.
Northern R.R., 102 F.3d 295, 299 (7th Cir. 1996).
D. Material Facts
On the basis of the pleadings and the
expanded record, and specifically on the portions
of that record which comply with the
requirements of Rule 56(e) for admissible
evidence, the following facts are undisputed for
the purposes of the cross-motions for summary
judgment.
1. In 1994, WREP began operating
Indianapolis' Advanced Wastewater Treatment
System (the "Plant"). The Plant has two facilities:
Belmont and Southport.
2. Gaines has been employed by WREP as an
Operation Specialist in the Operation Department
since January 30, 1994.
The New 2001 Shift Schedule
3. WREP management maintains final
authority, at all times, to direct the work of the
Operation Specialists and set their work
schedules.
4. In December, 2000, Operation Manager
George Russell ("Russell") had to devise a method
to rank all Operations Specialists to determine the
bidding order on the new shift that would go into
effect in January, 2001. Russell's task was
28.
————————E—eo
complicated by the fact that many of the current
Operations Specialists’ job descriptions did not
become effective until December, 1995.
3. The method Russell developed in Decem-
ber, 2000, to determine shift bidding order for the
Operations Specialists' new schedule involved
first ranking all Operations Specialist based upon
their time in the position since late 1995.
6. In the event that Operation Specialist had
the same amount of time in their position since
late 1995, Russell used their Original date of hire,
either with WREP or the City of Indianapolis, as a
tie-breaker.
7. On December 22, 2000, Russell
announced in an e-mail message to all Operations
Specialists that, based on his ranking method,
Everette Pate ("Pate") would receive first pick for
a schedule, Mike Wood ("Wood") was second and
Gaines was third out of ten Operation Specialists.
8. On January 1 and 2, 2001, Gaines sent e-
mail messages to multiple individuals asking that
WREP review Russell's methods for determining
the shift-selection order for violations of the
Company's Equal Employment Opportunity
Policy.
9. On January 4, 2001, in response to Gaines’
complaint, as well as complaints received from
other Operations Specialists, Russell put the new
shift schedule for Operation Specialist on hold
29.
EE
while he re-evaluated the methods he used for
determining seniority.
10. Also on January 4, 2001, Project
Manager Pam Wolsiefer-Leak ("Wolsiefer-Leak’)
sent an e-mail message to Gaines in which she
told Gaines that Russell was looking at his request
and that there was "no need for anyone else to get
involved."
11. On January 5, 2001, Gaines sent an e-
mail message to Human Resources Manager
Ginny Suever ("Suever"), Wolsiefer-Leak and
Supervising Operations and Maintenance En-
gineer David WHackworth ("Hackworth") re-
questing that Human Resources Department re-
view Russell's methods for determining seniority
to "prevent a conflict of interest." Because
Gaines disagreed with the rankings, he refused to
~ select a shift schedule and Russell assigned him
one.
R II’ 1 Shift Rotation Directi
12. On January 5, 2001, Russell sent an e-
mail message to all Operations Specialists
informing them that, effective January 8, 2001,
the rotation for all Operations Specialists between
the Belmont and Southport facilities would be
every two weeks.
13. In January 5, 2001 e-mail message
regarding the rotation between the Belmont and
Southport plants, Russell stated that failure to
follow his directive would be considered a Com-
pany policy violation for failing to follow a direct
order and insubordination.
30.
PA a el Ja ie Sy ae La rk east ea > i oie
14. Russell implemented the new rotation
policy to ensure that all Operations Specialists
gained sufficient experience working at both
facilities, which would make the Operations
Specialists staff as a whole more versatile and
create greater scheduling flexibility.
15. On January 9, 2001, Gaines sent an e-
mail message to Russell, Wolsiefer-Leak, Suever
and Hackworth questioning the wisdom of
Russell's decision to place all Operations
Specialists on a two-week rotation between the
Belmont and Southport facilities.
ines' 1 Disciplinary Action R
16. On January 10, 2001, in response to
Gaines' January 9 e-mail message, Russell sent an
e-mail message to Gaines informing him that the
rotation schedule provides an equal rotation for
all Operation Specialists and that Gaines' con-
tinued questioning of Company directives con-
stituted insubordination.
17. Sometime on or about January 10, 2001,
after Russell had determined that Gaines' e-mail
messages of January 5 and January 9, 2001
constituded acts of insubordination, he discussed
the the appropriate disciplinary response with
Hackworth, Wolsiefer-Leak and Suever.
4
18. Hackworth, Wolsiefer-Leak and Suer
ver agreed with Russell that Gaines’ conduct
Ji.
constituted insubordination and agreed a Discipli-
nary Action Report was an appropriate response.
19. On January 11, 2001, Russell issued
Gaines a Disciplinary Action Report for
insubordination.
20. The January 11, 2001 Disciplinary
Action Report was issued because (1) Gaines
continued to make requests for a review of
Russell's seniority determinations after Wolsiefer-
Leak informed Gaines that Russell was reviewing
the matter; and (2) Gaines questioned Russell's
decision concerning the rotation schedule between
the Belmont and Southport facilities.
21. Russell stated in the January 11, 2001,
Disciplinary Action Report that Gaines' e-mail of
January 5, 2001 was an "incident of in-
subordination and behavior deemed offensive or
contrary to the best interest of the Company"
because Gaines "was aware that further review
was being done [on the method used to determine
shift-selection order], yet he failed to comply with
[Wolsiefer-Leak's January 4] directive and
star[ed] making unreasonable demands on others."
22. Russell also stated that Gaines' January
9, 2001, e-mail message was a "challenge" to his
own January 5 e-mail message concerning the
rotation directive and constituted a second in-
cident of insubordination.
ines' Complaint A i
23. Under the new shift schedule that was
ultimately implemented in January, 2001, all
32.
Operation Specialists were required to work four
days a week.
24. The four-day work week was comprised
of two 12-hour shifts and two eight-hour shifts.
25. Under that schedule, all Operations
Specialists were expected to handle department
cleaning duties once every two weeks, and
perform four hours of cleaning working during
one of the days in which they worked a 12-hour
shift.
26. On such days, Operations Specialists
would work four hours Cleaning, then work an
eight-hour shift at the computer console. ©
27. Under the four-day week schedule, the
shift supervisors were charged with the task of
making sure that the Operations Specialists per-
formed the cleaning work.
28. The shift supervisors used their
discretion. when determining how the cleaning
work was to be performed and completed.
29. The four-day work week schedule imple-
mented in early 2001 was changed in late 2001 or
early 2002.
30. Currently, Operations Specialists work
_ eight hours a day, five days a week. Under the
Current work schedule, there is no set cleaning
schedule.
33.
31. Under the current work schedule, each
individual shift supervisor is responsible for
making sure that the Operations Specialists
complete the cleaning duties as assigned or as
needed. Christie Hedges (sic) was Gaines' su-
pervisor, and she did not supervise Operations
Specialists Pate, Wood, or Lawson.
32. The job description for Operations
Specialists includes general housekeeping duties.
Russell Changes Miller's and Wood's Work
Schedules
33. Some in the summer of 2001, Operations
Specialist Barbara Miller ("Miller") asked Russell
if it was possible for him to change her work
schedule.
34. At the time of her request, Miller was
working Sundays from 7:00 p.m. to 7:00 a.m.,
Mondays from 3:00 p.m. to 11:00 p.m., Tuesdays
from 3:00 p.m. to 11:00 p.m. and Saturdays from
7:00 p.m. to 7:00 a.m.
35. Miller told Russell that she was having
some health problems and found it physically
draining to work 12 hours on Sunday and then,
just eight hours later, work another eight-hour
shift on Monday.
36. After considering her situation and
reviewing the schedule, Russell determined that
he would accommodate Miller's request by
moving her 3:00 p.m. to 11:00 p.m. shift from
Mondays to Wednesdays without disrupting the
schedule of other Operations Specialists.
34.
37. Russell modified Wood's work schedule
several times in 2001 so that Wood could assist
with employee training.
38. The modifications to Wood's schedule
were made at Russell's request.
39. When Russell changed the schedules of
Miller and Wood, he did not issue either of them a
Disciplinary Action Report because he did not
consider their conduct to be insubordinate.
ines' Complaints A ing "Per: nal Time"
Visi H R ffi
40. All employees working shifts at the Bel-
mont and Southport facilities during hours when
the Human Resources office is closed must visit
the Human Resources office on their own, unpaid
time if they have business that requires them to
make an in-person visit.
41. After January, 2001, shift schedule was
implemented, Gaines worked Tuesdays from 7:00
p.m. to 7:00 a.m., Wednesdays from 11:00 p.m. to
7:00 a.m., Thursdays from 7:00 p.m. to 7:00 a.m.
and Friday from 11:00 p.m. to 7:00 a.m.
6.
42. WREP's Human Resources office is
typically open from 8:00 a.m. to 5:00 p.m.,
Monday through Friday.
43. Because of Staffing and budgeting
limitations, WREP is unable to open the Human
35.
Resources office before 8:00 a.m. or keep it open
much later than 5:00 p.m., Monday through
Friday.
44. Operation Specialists Karen Uhlenhake,
a white female, and Operations Specialists, James
Lawson, a white male, worked schedules com-
prised largely of 7 p.m. - 7 a.m. and 11 p.m. - 7
a.m. shifts. Uhlenhake and Lawson had to visit
the personnel office on their own time if they had
business that required an in-person visit.
ines' mplaints A Being "F " ToE-
il More Than Five E.
45. Sometime in January, 2002, Russell
directed all Operations Specialists to prepare a
summary of maintenance problems experienced
on their respective shifts and e-mail the summary
to various department employees.
46. Sometime in January, 2002, Gaines
questioned whether Russell's directive on the
summary report applied to him because sending
the summary would require him to violate an e-
mail restriction that had been imposed on Gaines
in July, 1997.
47. In response to Gaines' concerns that he
was being forced to violate the rule restricting his
use of the e-mail system, Russell told Gaines
sending the summary of maintenance problems
was an exception to that rule and that he was
allowed to send the summary by e-mail to the
necessary employees.
48. Russell reasoned that the e-mail
36.
Oa
So Tools DRE IC Rah EWES SEAN POSE
ig D5 AX aie Hats SEE
restriction did not apply to e-mailing the s
report because such an e-mail was Strictly work-
related and would not result in numerous
uninterested individuals receiving e-mails from
Gaines.
49. Sometime later, Gaines sent an e-mail
message to Wolsiefer-Leak asking for ciarifica-
tion on Russell's interpretation of the €xception to
the e-mail restriction.
50. In response to Gaines’ e-mail to
Wolsiefer-Leak, Russell told Gaines the Company
€-mail system was not the proper format to
discuss his concerns about the restriction.
51. Russell told Gaines if he had questions
about the restriction, he should schedule a
meeting so that they could discuss the matter in
person. Russell believed an in-person meeting
would work best with Gaines because of his
history of abusing e-mail privileges.
52. Wolsiefer-Leak did -not respond to one
of Gaines' e-mail messages seeking clarification
on the restriction because she thought Russell was
handling the matter.
dines! Complaints boss Tenteten P
53. Under WREP policy, all Operations
Department employees are entitled to pay for time
spent in mandatory training sessions like 'con-
fined space training.”
37.
54. To receive training pay, all employees
must mark the date and time of the training at
issue on their timecard. The training pay would
then be included in the next paycheck.
55. Gaines was not paid for the December
13, 2001 "confined space training" session
because he hever submitted a timecard requesting
pay.
56. Some months after the session, when
Gaines brought the issue to Russell's attention,
Russell told Gaines that he would be paid for the
training once he submitted the time on his
timecard and notified his supervisor of the
situation.
WREP's Policies C ae ie tl
and Salary Levels
57. Gaines' salary and raise levels were set
according to WREP's corporate policy.
58. WREP sets its wage levels for all
employee based on corporate guidelines that
make no reference to race or sex.
II. Administrative Filing and Prior Litigation
Some of the medley of Gaines' claims are
based on charges filed with the Equal Em-
ployment Opportunity Commission ("EEOC").
Those charges are identified as numbers 240-
A12467, 240A20085, and 240A201230 on page 3
of the complaint.
38.
In EEOC Charge No. 240A12467, dated
August 6, 2001, Gaines alleges that he was
discriminated against on the basis of race, sex,
and age, and in retaliation for filing a previous
charge. He alleges that WREP maintains a
confidential file where sex and race are used to
determine pay rate, that he has been allowed to
obtain continuing education credits only at the
Belmont plant while a white employee holding the
same type of job was allowed to obtain credit
while assigned at both Belmont and the Southport
plants, and that he has been required to provide
proof of certification status while white
employees fail to meet certification requirements.
He further alleges that one or more supervisors
have been informed that Gaines has legal action
pending against WREP and that they are to avoid
putting statement in writing. The EEOC issued a
right to sue notice on Charge No. 240A12467 on
January 25, 2002. The court takes judicial notice
that this claim was presented and disposed of in
Gaines vy. White River Environmental Partner-
ship, et al., IP 01-1158-H/K (S. D. Ind. Sep-
tember 30, 2002)
EEOC Charge No. 240A20085, dated
October 15, 2001, consists of Gaines' allegations
that he was discriminated against by WREP on the
basis of race and sex, and in retaliation for having
protested a violation of his civil rights. Gaines
alleges that in January 2001, the Operation
Department of WREP began a new work schedule
where assignments was, in part, based on race,
which Gaines opposed. After Gaines tried to
obtain input into his schedule, Operation Manager
George Russell accused Gaines of being
insubordinate and issued a letter of reprimand on
39.
January 11, 2001. He further alleges that in
August 2001, Ms. B. Miller, a white Operations
Specialists, the same job title as held by Gaines,
requested a change in her work schedule and the
request was granted, and no letter of reprimand
was issued. Another white Operations Specialist,
Mr. M. Wood, was also granted a different
schedule, and no letter of reprimand was issued to
him. Gaines alleges that after he opposed the new
work schedule in January 2001, WREP imposed
the following adverse treatment:
a) WREP required Gaines clean, four
hours at a time, on a bi-weekly basis before
starting his normal eight hour shift, such cleaning
duties having previously been performed by
Union personnel;
b) Two white male Operation
Specialists, M. Wood and J. Lawson, have been
exempted from the four hour cleaning duty "more
so than Gaines."
c) Assigned Gaines to working hours
which require the full use of personal time, (sic)
"Company time," to attend to matters that require
a personal visit to the Office of Human Resources,
such as reviewing his personnel file;
d) Other Operation Specialists, M.
Wood, Ms. Miller, Mr. Pate, Mr. Wallace, Mr.
Rodriquez, and Ms. Derringer, were assigned
work schedules would allow each of them to
review personnel files, for example, on "Company
time.”
40.
The EEOC issued a right to sue notice in Charge
No. 240A20085 on January 25, 2002.
EEOC Change No. 240A201240, dated
March 4, 2002, alleges that further acts of
retaliation occurred after Gaines filed the two
EEOC charges described above in August 2001
and October 2001. The examples cited by Gaines
in this charge are that he was denied 1.5 hours of
pay when he attended training on December 13,
2001; he, and only he, has been directed not to e-
mail more than five employees at once but than on
January 18, 2002, Mr. Russell, manager, forced
Gaines e-mail more than five employees at once:
Wolsiefer-Leak failed to respond to his questions
about the e-mail restriction; Gaines was directed
not to use e-mail to clarify policy; he was
discouraged from using the internal complaint
procedure; having denied Gaines pay on
December 13, 2001, as of February 7, 2002,
management expressed its intent to work Gaines
during times of sickness; and EEOC complaints
are ignored or always result in findings of "no
policy violations," with no Statement as to
whether that means the conduct complies with
company policy. The EEOC had not issued a right
to sue notice for Charge No. 240A201240 as of
the date Gaines filed his complaint or his motion
for summary judgment.
The name of the employer listed on each
EEOC complaint is WREP. Gaines did not file
EEOC charges against any of the other three
defendants in this case, nor did he name as a
respondent any individual or entity not named as a
defendant.
The scope of Gaines' Title VII and ADEA
claims available for resolution in this action is
limited by various circumstances.
As a general rule, in a Title VII or
ADEA lawsuit, a plaintiff may not sue a party not
named as a respondent in an EEOC change. 42
U.S.C. § 2000e-5; 29 U.S.C. § 626(e) ("A civil
action may be brought ... against the respondent
named in the charge"); Olsen v. Marshall &
IIsley Corp., 267 F.3d 597, 604 (7th Cir., 2001);
Perkins v. Silverstein, 939 F.2d 463, 471 (7th
Cir. 1991). The only entity Gaines named as a
respondent in his EEOC charge was WREP.
Gaines has not argued that any exception to the
general rule applies, rather he contends that he did
not name the other three defendants because the
space on the EEOC form was too small. This
explanation is meritless. By not naming the other
three defendants, Gaines did not afford them
notice of the charges and the opportunity to
participate in any administrative proceedings.
Accordingly, for purposes of any Title VII and
ADEA claims, because IWC Resources, United
Water Services and Suez Lyonnaise were not
named as respondents, these three defendants
must be dismissed.
In addition, Gaines has filed to state a
claim upon which relief can be granted against
any individual manager of WREP, because they
are not Gaines' "employer." See 42 U.S.C. §
2000e(b) (employer" is defined as "a person
engaged in an industry affecting commerce who
has fifteen or more employees for each working
day in each of twenty or more calendar weeks in
the current or preceeding year, and any agent of
42.
such a person ...."); Williams y. Banning, 72
F.3d 552 (7th Cir. 1995) (individual supervisors
cannot held individually liable under Title VII);
Stults v. Conoco., Inc., 76 F. 3d 651, 655 (5th Cir.
1996) (ADEA, like Title VII, does not authorize
Claims against employees as individuals).
The court takes judicial notice that
allegations asserted in EEOC Charge No.
240A12467 were resolved in Gaines v. White
River Environmental Partnership, et al., IP ()1-
1158-H/K. "Under the federal common law of res
judicata, a subsequent suit is barred if the claim
on which it is based arises from the same incident,
events, transaction, circumstances, or other
factual nebula as a prior suit that had gone to final
judgment.” Okoro y. Bohman, 164 F.3d 1059,
1062 (7th Cir. 1999) (citations omitted. The
doctrine of res judicata applies where the fol-
lowing elements are present: (1) a final judgment
on the merits in an earlier action, (2) an identity
of the cause of action in both the earlier and later
suits, and (3) an identity of parties or their privies
in the two suits. Tice vy. American Airlines, 162
date Gaines filed his complaint and after Gaines
filed his motion for summary judgment. On May
13, 2002, the court denied Gaines' motion to
amend his complaint seeking leave to amend his
complaint once the right to sue notice was issued,
because his motion was filed before the right to
43.
sue notice was issued. Gaines did not seek leave
to amend his complaint after receiving the right to
sue
10
notice for Charge No. 240A201240; rather, he
filed another lawsuit, Gaines v. White River
Environmental Partnership, et al., 1:02-cv-1524-
DFH. WREP has addressed Gaines' claims from
Charge No. 240A201240 in its motion for
summary judgment and has presented a copy of
two right to sue notices through an affidavit of
Ginny Suever. Moreover, the court notes that
Gaines v. White River Environmental Partner-
ship, et al., 1:02-cv-1524-DFH was dismissed on
the docket on November 29, 2002, because the
"claims asserted in this action are or could be
asserted in Gaines v. White River Environmental
Partnership, et al., No. IP 02-595-C-T/K." To
dismiss the claims now in this action would
prevent Gaines from asserting these claims in
either action, and a new action would doubtless be
untimely under the 90-day rule. 42 U.S.C. §
2000e-5(f)(1); Threadgill v. More U.S.A., Inc.,
269 F.3d 848, 849-50 (7th Cir. 2001).
Accordingly, Gaines' previous failure to exhaust
administrative remedies has been cured and such
claims will be addressed on the merits in this
action. See Perkins, 939 F.2d at 471 (while
plaintiff's Title VII claims 'may have been subject
to dismissal at any time prior to Perkins' receipt
of a right-to-sue letter, the receipt of that letter
after the complaint had been filed; but before it
had been dismissed, effectively cured the
deficiency in the original complaint.")
44.
Accordingly, this leaves for consideration Gaines'
race and sex discrimination and retaliation claims
which are encompassed in EEOC Charges No.
240A20085 and No. 240A201240.
III. Discussion
A. Title VII Claims of Discrimination
Gaines may prove his discrimination claims
(race and sex under Title VII) either by presenting
direct evidence or by relying on the indirect,
‘burden-shifting" method of proof outlined in
McDonnel Douglas Corp. v. Green, 411 US.
792 (1973), Texas Dept. of Community Affairs
v. Burdine, 450 U.S. 248 (1981), and St. Mary's
Honor Center v. Hicks, 509 USS. 502 (1993).
To avert Summary judgment in an employment
discrimination case, a plaintiff must present either
evidence of discriminatory motivation or establish
a prima facie case of discrimination under the
McDonnell Douglas formula. Sheehan v. Daily
Racing Forms, Inc., 104 F.3d 940 (7th Cir.), cert.
denied, 521 U.S. 1004 (1997),
Direct evidence is evidence which, if
believed by the trier of fact, will prove the
particular fact in question without reliance upon
presumption of inference. Plair y. FE. J. Brach
& Sons, Inc., 105 F.3d 343,347 (7th Cir. 1997).
The direct evidence must show that the defendant
said or did something indicating discriminatory
animus with regard to the specific employment
decision in question. Id.
Gaines has not offered evidence of direct
45,
discrimination.
11
Under the alternative method, in McDonnell
Douglas, the Supreme Court "established an
allocation of the burden of production and an
order for the presentation of proof in Title VII
discriminatory treatment cases." First, the
plaintiff must establish a prima facie case of
discrimination. Second, once the prima facie case
is established, the defendant must state a
legitimate, non-discriminatory reason for the
adverse employment action. Finally, if a legi-
timate, non-discriminatory reason is offered, the
plaintiff must come forward to. show that the
stated reason is not the true one, but only a pretext
for discrimination. See McDonnell Douglas, 411
U.S. at 802-04; DeLoach v. Infinity Broadcasting,
164 F.3d 398, 401 (7th Cir. 1999) (citation
omitted).
A prima facie case of discrimination on the
basis of race or gender requires Gaines to prove
that: 1) he is a member of a protected class; 2) his
job performance met his employer's legitimate
expectations; 3) he suffered an adverse employ-
ment action; and 4) similarly situated employees
outside his protected class were treated more
favorably. Brummett v. Lee Enterprises, Inc.,
284 F.3d 742, 744 (7th Cir. 2002); Hoffman-
Dombrowski v. Arlington Int'l Racecourse, Inc.,
254 F.3d 644, 650 (7th Cir. 2001)).
The third required element of Gaines' claims
of discrimination is that he suffered an adverse
46.
ee
employment action. "[Nlot everything that
makes and employee unhappy is an actionable
adverse action." Bel] y. Environmental Pro-
tection Agency, 232 F.3d 946, 555 (7th Cir.
2000). "(A] significant change in employment
Status" is necessary for an employment action to
be considered adverse. Id. An adverse change
must be material, and "might be indicated by a
termination of employment, a demotion evidenced
decrease in wage or Salary, a less distinguished
title, a material loss of benefits, Significantly
diminished material responsibilities, or other
indices that might be unique to a particular
Situation." Robinovitz vy. Pena, 89 F.3d 482, 488
(7th Cir. 1996) (quoting Crady vy. Liberty Nat'l
ose Trust Co., 993 F.2d 132, 136 (7th Cir.
1993)).
Gaines alleges in EEOC Charge No. 240-
A20085 that a work Schedule put in place was
based on race, that he was written up for opposing
the new schedule, that he was required to perform
other white male Operations Specialists, and that
his work schedule required him to review his
personnel file or tend to other human resource
Ellerth, 524 U.S., 742, 761 (1998): Stutler vy. III.
Dep't of Corr., 263 F.3d 698, 703 (7th Cir. 2000);
Krause v. City of La Crosse, 246 F.3d 995, 1000
)7th Cir. 2001) (letter of reprimand alone is not
an adverse employment action), In addition, the
47.
nr |
undisputed facts show that the new work schedule
was not based on race. Rather, it was based on
seniority. The four hours of cleaning duty was
imposed on all Operation Specialists, and each
supervisor used their discretion in determining
how the work was to be performed. Other aspects
of a prima facie case are not established. For
example, the other Operation Specialists to whom
Gaines compares himself with regards to cleaning
duties were not supervised by the same super-
visor, and so are not similarly situated employees.
Radue v. Kimberly-Clark Corp., 219 F.3d 512,
617-18 (7th Cir. 2000) (similarly situated
employees must have substantial similarity in
performance,
12.
qualification, and conduct, showing that the two
employees had the same supervisor, were subject
to the same standards, and engaged in similar
alleged misconduct).
"Without a prima facie case, the plaintiff
cannot withstand summary judgment." Hong v.
Children's Memorial Hosp., 993 F.2d 1257, 1261
(7th Cir. 1993), cert. denied, 551 U.S. 1005
(1994), Gaines' failure to present a prima facie
case of discrimination under Title VII in Change
No. 240A20085 compels the court to grant
WREP's motion for summary judgment as to such
claims.
B. Title VII Claims of Retaliation
Gaines alleges claims of retaliation in EEOC
48.
ooo
Charge No. 240A201240. Specifically, Gaines
alleges in that charge that he was denied 1.5 hours
of training pay for "confined Space training" on
December 13, 2001: he and only he has been
restricted to sending e-mail to no more than five
employees but he was forced to e-mail more than
five employees on January 18, 2002; Wolsiefer-
Leak failed to respond to his questions about the
e-mail restriction; Gaines was directed not to use
e-mail to clarify policy; he was discouraged from
using internal complaint procedure; and his EEOC
complaints always result in findings of "no vio-
lation."
Under Title VII, an employer may not take an
adverse employment action or discriminate
against an employee because he has Opposed an
unlawful employment practice or has made a
charge under the statue. See 42 U.S.C. §$ 2000e-
3(a).
In Stone v. City of Indianapolis Public
Utilities Div., 281 F.3d 640 (7th Cir.), cert.
denied, 123 S. Ct. 79 (2002), the Court of
Appeals clarified the proper standard for s
judgment when a plaintiff Claims that he was
retaliated against for complaining about employ-
ment discrimination. The direct evidence method
consists of presenting
direct evidence (evidence that estab-
lishes without resort to inferences
from circumstantial evidence) that he
engaged in protected activity (filing a
charge of discrimination) and as a re-
sult suffered the adverse employment
action of which he complaints. If the
49,
ee
evidence is uncontradicted, the plain-
tiff is entitled to summary judgment.
If it is contradicted, the case must be
tried unless the defendants presents
unrebutted evidence that he would
have taken the adverse employment ac-
tion against the plaintiff even if he had
had (sic) no retaliatory motive; in that
event the defendant is entitled to sum-
mary judgment because he has shown
that the plaintiff wasn't harmed by re-
taliation.
Id. at 644.
The second route to summary judgment, the
adaptation of McDonnell Douglas to _ the
retaliation context, requires the plaintiff to show
that after filing the charge only he, and not any
similarly situated employee who did not file a
charge, was subjected to an adverse employment
action even though he was performing his job in a
satisfactory manner. If the defendants presents no
53.
evidence in response, the plaintiff is entitled to
summary judgment. If the defendants presents
unrebutted evidence of a noninvidious reason for
the adverse action, he is entitled to summary
judgment.
Id.
Gaines' claims of retaliation cannot survive
WREP's motion for summary judgment under
50.
either of the above tests:
First, Gaines has produced no direct
evidence of discrimination based on his filing of
the EEOC charges in August and October 1991
(sic) WREP does not dispute that Gaines
engaged in protected activity, but argues that none
of the conduct alleged constitutes an actionable
adverse employment action, "a significant change
in employment." Bell, 232 F.3d at 555. The
court agrees. The WREP management directives
concerning e-mail after finding that Gaines
abused the e-mail System in the past, and the
failure to pay Gaines for 1.5 hours of pay until he
submitted the request in proper form are not
‘adverse" actions.
The second means of Surviving
WREP's motion for summary judgment, which
requires Gaines establish a prima facie case of
retaliation under Title VII, fails for the same rea-
son as under the direct evidence method. Gaines
cannot establish any actionable adverse employ-
ment action on the part of WREP. Even if he had,
WREP has offered a legitimate, nondiscriminatory
reason for each action. WREP allowed Gaines to
e-mail more than five employees as an exception
to the earlier restriction because the e-mail
requested from Gaines was Strictly job-related and
would not result in numerous uninterested
individuals receiving e-mail messages from
Gaines. Wolsiefer-Leak did not respond to
Gaines' e-mail seeking clarification because she
believed Russell was handling the matter. Gaines
has not been prevented from using the internal
company complaint procedure. Rather, he has
disagreed with the response that he has received.
31.
Gaines was not paid for a particular 1.5 hour
training because he did not submit a timecard
requesting pay for that session. Gaines failed to
meet his ultimate burden of establishing that these
reasons were merely pretextual. Paluck v. Good-
ing — Co., 221 F.3d 1003, 1009 (7th Cir.
2000).
To the extent Gaines alleges in EEOC
Charge No. 240A20085 that he was retaliated
against for having filed a previous charge, the
discussion of_Gaines' disparate treatment claims
alleged in that charge also disposes of any
retaliation claim and further discussion here of
such a claim is not warranted.
Based on the foregoing, therefore, Gaines has
neither made a showing of direct evidence of
retaliation, nor has he set forth a prima facie case
of rétaliation. WREP's motion for summary
judgment must be granted as to Caines' claims of
retaliation.
i4
C. State Law Claims Of Conspiracy
and Fraud
Gaines alleges in his complaint that
"conspiracy" and "fraud" "will be claimed." The
affidavit in support of Gaines' motion to include a
pleading of conspiracy and/or fraud in summary
judgment brief, filed on June 25, 2002, contains
allegation that certain managers of WREP
"perfected fraud against the plaintiff." Gaines
does not base his claims on any federal cause of
52.
action for conspiracy or fraud, and so the court
will treat them as though asserted under Indiana
law.
Gaines alleges the foliowing acts of "fraud"
Or "conspiracy:" 1) after Manager Farnham
assured Gaines in May 1997 that Gaines could
have input into decisions, when Gaines objected
to a changed in shift schedules, he was given a
letter of reprimand in July 1997; 2) after being
assured by Manager Russell that the rule against
sending e-mail to more than five people at a time
could be suspended under certain circumstances
based on common sense, Gaines sent an e-mail to
more than five people and received a letter of
reprimand; 3) in January 2001, Manager Russell
changed the plant rotation schedule from every
three months to every two weeks, and Gaines’
attempt to have "input" into that Schedule by
objecting to it, resulted in another letter of
reprimand; 4) Gaines' attempt to appeal the
January 2001 letter of reprimand was prevented
by Manager Wolsiefer-Leak when she responded
to his complaint that "I expéct this to end here."
Gaines' claim that individual manager of
WREP conspired or perfected fraud against
Gaines is dismissed for several reasons. First,
Gaines challenged the July 1997 letter of
reprimand in his first lawsuit against WREP,
Gaines v. White River En vironmental Part-
nership, et al, IP 98-1741-C-M/S, and that claim
will not be reconsidered here. .
Second, even if these were all "new" claims,
Gaines has failed to state a Claim upon which
relief can be granted because there is not a shred
a3.
of evidence that the defendants had agreed to
engage in any unlawful activity. Huntington
Mortg. Co. v. DeBrota, 703 N.E. 2d 160, 168
(Ind. Ct App. 1998) ("Civil conspiracy is
defined as a combination of two or more persons,
by concerted action, to accomplish an unlawful
purpose or to accomplish some purpose, not in
itself unlawful, by unlawful means.") Moreover,
any conspiracy claim is barred by the
intracorporate conspiracy doctrine. See Jamerson
v. Anderson Newspapers, Inc., 469 N.E. 2d 1243,
1251, (Ind. Ct. App. 1984); Payton v. Rush-
Presbyterean-St. Luke's Med. Ctr., 184 F.3d
623, 632 (7th Cir. 1999) (a "conspiracy cannot
exist solely between members of the same
entity").
Third, Gaines has also failed to state a claim
of fraud under Indiana law. The elements of a
claim of fraud under Indiana law are:
1) a material misrepresentation of a
past or existing fact which 2) was un-
true, 3) was made with knowledge of
or in reckless ignorance of its falsity,
4) was made with the intent to de-
ceive, 5) was rightfully relied upon
by the complaining party, and 6)
which proximately cause the injury or
damage complained of.
Lawyers Tile Ins. Corp. v. Pokraka, 595 N.E.
2d 244, 249 (Ind. 1992).
15
54.
Although Gaines may perceive that certain
managers misled him with statements made about
input into decisions or e-mail rules or the
disciplinary process, he has not identified any
misrepresentations that were made with
knowledge that they were false and made with an
intent to deceive. Nor has Gaines shown any
reasonable reliance on any misrepresentations.
Gaines' personal beliefs or Speculations fail to
establish the required elements of his claim.
Moreover, because there were no misrepre-
sentations, there is no causation of injury. The
only "injury" arguable alleged is the receipt of
written reprimands but Gaines presented no
evidence of any change in or loss of job, benefits,
Pay or responsibilities. The defendants are
entitled to Summary judgment as to Gaines’ claims
of conspiracy and/or fraud.
D. Remaining Statutory Claims
The remaining Statutory claims do not
support relief and require little discussion.
Although 42 U.S.C. § 1981 applies
only to alleged discrimination on the basis of race
or alienage, Bratton y. Roadway Package Sys-
WREP is not a state actor, as required
55.
to support a claim of 42 U.S.C. § 1983. Moore
v. Marketplace Restaurant, 754 F.2d 1336, 1352
(7th Cir. 1985) (Section 1983 plaintiff must
"demonstrate that state officials and the private
party somehow reached an understanding to deny
the plaintiff their constitutional rights."
Therefore, Gaines' claims based on various
amendments to the Constitution fail to state a
‘claim upon which relief can be granted.
IV. Conclusion
"Employers may act for many reasons, good
and bad; they may err in evaluating employees'
strengths; unless they act for a forbidden reason,
these errors (more properly differences in assess-
ments) do not matter." Kuhn v. Ball State Univ.,
78 F.3d 330, 332 (7th Cir. 1996). Gaines has
failed to establish a genuine issue of material fact
or that he is entitled to judgment as a matter of
law as to any of his claims. Accordingly, Gaines’
motion for summary judgment must be denied
and the defendants’ motion for summary judgment
must be granted.
Judgment consistent with this Entry shall
now issue.
IT IS SO ORDERED
S/ JOHN D. TINDER, Judge
United States District Court
Date: 3/27/2003
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
LOUIS F. GAINES, )
Plaintiff,
VS. ‘ IP 02-595-T/K
WHITE RIVER ENVIRON-
oe igi PARTNERSHIP,
Defendants.
JUDGMENT
The court, having this day made its Entry,
IT IS THEREFORE ADJUDGED that judg-
ment is entered for the defendants and against the
plaintiff as to the claims in this action.
The costs of this action are assessed against
the plaintiff.
S/ JOHN D. TINDER, Judge
United States District Court
Date: 3/27/2003
Copies to:
Louis F. Gaines
5337 N Coilege Avenue
Indianapolis, IN 46220
Alan McLaughlin
Eirc Papier
Baker & Daniels
300 N Meridian St., Suite 2700
Indianapolis, IN 46204
58.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
LOUIS F. GAINES,
Plaintiff,
vs. IP 02-595-T/K
WHITE RIVER ENVIRON-
MENTAL- PARTNER SHIP,
et al.,
Defendants
Ne Nee eee Nee ee ee wee I OS SL
ENTRY DISCUSSING PLAINTIFF'S
MARCH 27, 2003, FILINGS
The court has considered the plaintiff's
motion to vacate Entry of March 14, 2002, his
affidavit in support, and his motion to Strike, each
filed on March 27, 2003.
The basis for each of these filings is that the
plaintiff believes the court unfairly granted the
defendants time to file their response to the
plaintiff's motion for Summary judgment while at
the same time the court struck from the record
several of the plaintiff's filing which were filed
after ~he filed his initial response to the
defendants' motion for Summary judgment. Any
relief sought by the plaintiff's March 27, 2003,
filings is denied. The reason for this disposition
is that there is no basis to strike the defendants'
response to the plaintiff's motion for summary
judgment or their cross-motion for summary
judgment, filed on September 3, 2002. The
defendants, unlike the plaintiff, had filed a motion
for enlargement of tirme on August 30, 2002,
which the court grantec, »akiag their September
3, 2002, filing timely. Moreover, the defendants
filed a single response to the plaintiff's motion.
The plaintiff, on the other hand, never sought
additional time to file any supplemental responses
to the defendants' motion. Rather, he filed a
series of responses, weeks and months apart,
without leave of court. This is not the proper
manner in which to brief a pending dispositive
motion. There was no error in the rulings issued
on March 14, 2003.
IT IS SO ORDERED.
S/ JOHN D. TINDER, Judge
United States District Court
-~
Date: 3/31/2003
60.
Copies to:
Louis F. Gaines
5337 N College Avenue
Indianapolis, IN 46220
Alan McLaughlin
Eric Paper -
Baker & Daniels
300 N Meridian St., Suite 2700
Indianapolis, IN 46204
61.
APPENDIX D: Other Relevant Rulings
62.
_—_$<C rs
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
LOUIS F. GAINES, IP 98-1741-C-M/S
Plaintiff,
V.
WHITE RIVER ENVIRON-
MENTAL PARTNERSHIP,
et al.,
)
)
)
)
)
)
)
)
)
)
Defendants. )
ENTRY DISCUSSING SECOND MOTION TO
AMEND COMPLAINT AND SETTING
DISCOVERY CONFERENCE
I. Second Motion to Amend Complaint
On June 1, 1999, the plaintiff filed his "second
motion to amend complaint. The essence of this
motion is that the plaintiff seeks to expand on his
Claims in this action by asserting the same claim
which has been submitted to the EEOC in the form
of a charge of discrimination, *No. 240-99-1616.
The charge of discrimination in No. 240-99-
1616 was filed on May 4, 1999, and alleges
retaliation and age discrimination from January
10, 1998 through April 20, 1999, and is included
as an exhibit tc the motion. Although the plaintiff
has requested a right to sue letter from the EEOC,
no right to sue notice had been issued with respect
to No. 240-99-1616 as of the filing of the
plaintiff's motion on June 1, 1999.
* A subsidiary portion of the second motion to
amend amounts to the plaintiff's effort to bolster
his claims with additional details he believes to be
supportive of his claims. It is unnecessary and
unhelpful to replead a claim with increasing
detail. The details of the plaintiff's claims are
precisely what discovery and various pretrial
disclosures are designed to unveil.
Rs
No cognizable claim under Title VII could be
stated in relation to events after January 10, 1998,
until a right to sue notice has been issued.
Alexander v. Gardner-Denver Co., 415 U.S. 36, 47
(1974). No amendment to a pleading should be
permitted if the amendment would be futile, and
an amendment would be futile if it could not
withstand a motion to dismiss under Rule
12(b)(6). In re Burlington Coat Factory Sec.
Litig., 114 F.3d 1410, 1434 (3d Cir. 1997).
Because the additional claim of discrimination
which the plaintiff proposes to assert relating to
the charge of discrimination in No. 240-99-1616
was filed on May 4, 1999, could not be maintained
at this point (because no right to sue letter has
been issued), the proposed amendment would be
futile. The plaintiff's second motion to amend
64.
is therefore denied.
The plaintiff's "proposed motion to amend
complaint, filed on June 10, 1999, is duplicative of
the second motion to amend complaint and is
denied as such.
II. Discovery Conference
_%
IT IS SO ORDERED
s/ LARRY J. McKINNEY, Judge
United States District Court
Date: August 19 1999
Copies to:
Louis F. Gaines, 5337 N. College Avenue, Indi-
anapolis, IN 46220
Hudnall Pfeiffer, Carolyn Coleman, Baker &
Daniels, 300 N. Meridian St., Suite 2700, Indiana-
polis, IN 46204
Glen Cunningham, Court Reporter
Pro Se Administrator
65.
UNITED STATES DISTRICT COURT -
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
LOUIS F. GAINES,
Plaintiff
v. IP-98-1741-C-M/C
WHITE RIVER ENVIRON-
MENTAL PARTNERSHIP,
et al.,
ee ee ee ee
Defendants
ENTRY CONCERNING SELECTED MATTERS
The court, having considered the above action
and the matters which are pending, now makes the
following rulings:
3. In the court's Entry of August 19, 1999, in
which it denied the plaintiff's second motion to
amend complaint, the court based its decision on
its understanding that the plaintiff had not
received a right to sue notice from the EEOC with
respect to charge No. 240991616 as the filing of
the plaintiff's motion on June 1, 1999. Through
inadvertence, the court did not acknowledge in its
Entry of August 19, 1999, that on July 12, 1999,
the plaintiff filed a copy of the right to sue notice
just described. In order to correct and clarify the
record, the court now reconsiders the portion of its
ruling of August 19, 1999, which denied the
plaintiff's second motion to amend complaint.
a. The charge of discrimination in No.
240991616 was filed with the EEOC on May 7,
1999, and alleged retaliation and age dis-
crimination occurring from January 5, 1999,
through April 20, 1999, which was after the
complaint in this action was filed. The right to
sue notice relating to charge NO. 240991616 was
issued on July 9, 1999.
<2.
b. The procedure posture of this action is as
follows: the action was filed on December 18,
1998, the defendants filed a motion for s
judgment on July 9, 1999, and discovery is
seemingly tumultuous. In Sanders v. Venture
Stores, Inc., 56 F.3d 771, 774-75 (7th Cir. 1995),
the Seventh Circuit cited a number of its published
decisions which had affirmed the denial of a
motion to amend after the filing, briefing or
decision of a motion for Summary judgment. The
principal basis of the court's decisions in these
cases was the unwarranted delay and burden an
amended complaint would bring to the litigation.
c. The court finds that the present litigation
also has progressed too far to permit the addition
of entirely new claims, based on events unrelated
to the events which supported the filing of the
original complaint. A motion for s
judgment has been filed and the parties are
embroiled in discovery concerns relating to the
67.
i ——™
claims in the amended complaint. Under these
circumstances, the plaintiff's second motion to
amend complaint, filed on June 1, 1999, remains
denied. The ruling in Part I of the Entry issued on
August 19, 1999, remains in effect, though
modified by the additional factual matters noted in
this Entry. For the same reasons, the plaintiff's
third motion to arend complaint, filed on August
23, 1999, is also denied.
IT IS SO ORDERED.
s/ LARRY J. McKINNEY, Judge
United States District Court
Date: October 25, 1999
Copies to:
Louis F. Gaines, 5337 N. College Avenue,
Indianapolis, IN 46220
Hudnall Pfeiffer, Carolyn Coleman, Baker &
Daniels, 300 N. Meridian St., Suite 2700, Indiana-
polis, IN 46204.
68.
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
UNITED STATES COURT Of APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 5, 2001
Decided March 23, 2001
Before
Hon. F. H. EASTERBROOK, Circuit Judge
Hon. D. A. MANION, Circuit Judge
Hon. D. P. WOOD, Circuit Judge
No. 00-3802 Appeal from the
United States Dis-
LOUIS F. GAINES, _ trict Court for the
Plaintiff-Appellant ‘ Southern District of
Indiana, Indiana-
v. polis Division
WHITE RIVER ENVIRON- No. 98-1741-C-M/S
MENTAL PARTNERSHIP,
et al., Larry J. McKinney,
Defendants- Appellees Chief Judge
ORDER
Louis Gaines, an African-American employed
as an Operation Specialist for the defendant White
River Environmental Partnership (WREP), filed
this employment discrimination suit in December
1998 under Title VII, 42 U.S.C. 2000e et seq., the
Age Discrimination in Employment Act, 29 U.S.C.
88 621-634, and 42 U.S.C. § 1981. The district
court granted summary judgment ffor the
defendants, holding that Gaines had _ not
established a prima facie case of discrimination.
Gaines appeals and we affirm.
No. 00-3802 Page 3
For the foregoing reasons, we Affirm the grant
of summary judgment to WREP. All pending
motions in this case are Denied.”
UNITED STATES COURT OF APPEALS
For the Seven Circuit
Chicago, Illinois 60604
May 17, 2001
Before
Hon. F.H. EASTERBROOK, Circuit Judge
Hon. D. A. MANION, Circuit Judge
Hon. D. P. WOOD, Circuit Judge
No. 00-3802
LOUIS F. GAINES, Appeal from the
Plaintiff-Appellant United States Dis-
trict Court for the
Vv. Southern District of
Indiana, Indiana-
WHITE RIVER ENVIRON- polis Division
MENTAL PARTNERSHIP,
et al., No. 98-1741-C-M/S
Defendant-Appellee
Larry J. McKinney,
Chief Judge
ORDER
Our order of March 23, 2001 affirmed the dis-
trict court's grant of Summary judgment to the de-
fendants in Gaines's employment discrimination
suit. Because Gaines' claims were frivolous and
his litigation strategy was marked by the filing of
numerous motions and appeals’ containing
spurious allegations of impropriety of Judge Mc-
Kinney and defense counsel, we directed Gaines
show cause why sanctions should not be imposed
under Federal Rule of Appellate Procedure 38.
Gaines has filed his response, and the matter is
ready for decision.
Rather than present a reason not to sanction
him, Gaines's response demonstrates that he
wishes to continue to his frivolous litigation
strategy. In his response, Gaines reiterates his
belief that the defendants have violated his rights,
asserts that all of his filings were necessary to
defend his rights, and suggests that we should
sanction the defendants rather than _ him.
Furthermore, three days after he filed his response
Gaines filed a petition for rehearing of his appeal,
once again raising the same frivolous claims of
discrimination.
No. 00-3802 Page 2
Gaines is hereby sanctioned $1,000 for filing a
frivolous appeal. Gaines shall tender a check
payable to the Clerk, United States Court of
Appeals, in the amount of $1,000 by May 30,
2001. Furthermore, we DENY his petition for
rehearing.
APPENDIX E: Legal Authority
LAN
UNITED STATES CONSTITUTION:
Fifth Amendment: ..., nor deprived of life,
liberty, or property, without due process of law.
Eighth Amendment: ..., nor excessive fines
imposed; nor cruel and unusual punishment
inflicted.
Thirteenth Amendment, Section I: Neither
slavery nor involuntary servitude, ..., shall exist
within the United States, or any place subject to
their jurisdiction.
TITLE 29, U.S.C. §8:
623(a): It shall be unlawful for an employer -
(1) ... or otherwise discriminate against any indi-
vidual with respect to his compensations, terms,
conditions or privileges of employment, because
of such individual's age; (2) to limit, segregate, or
classify his employees in any way which would
deprive or tend to deprive any individual of
employment opportunities or otherwise adversely
affect his status as an employee, because of such
individual's age; (3) to reduce the wage rate of any
employee in order to comply with this chapter.
623(d): It shall be unlawful for an employer to
discriminate against any of his employees ...,
because such individuals ... have made a charge,
testified, assisted, or participated in any manner in
an investigation, proceeding, or litigation under
this chapter.
TITLE 42 U.S.C., §§:
1981: All persons within the jurisdiction of
the United States shall have the same right in
every State and Territory to make and enforce
contracts, to sue, be parties, give evidence, and to
the full and equal benefit of all laws and
proceedings for the security of persons and
property as is enjoyed by white citizens, and shall
be subject to like punishment, pains, penalties,
taxes, licenses, and exactions of every kind, and to
no other.
1981(c): The rights protected by this section
are protected against impairment by non govern-
mental discrimination and impairment under color
of State law.
1983: Every person who, under color of any
Statue, ordinance, regulation, custom, or usage, of
any State ..., subjects, or causes to be subjected,
any citizen of the United States -. to the
deprivation of any rights, privileges, or immuni-
ties secured by the Constitution and laws, shall be
liable to the party injured in an action of law, suit
in equity, or other proper proceeding for redress.
2000e-2(a): It shall be an unlawful employ-
ment practice for an employer - (1) ..., to
discriminate against individual with respect to his
compensation, terms, conditions or privileges of
employment, because of such individual's race,
color, religion, sex, or national Origin; or (2) to
limit, segregate, or Classify his employees ... in
any way which would deprive or tend to deprive
any individual of employment opportunities or
otherwise adversely affect his status as an
75.
employee, because of such individual's race, color,
religion, sex, or national origin.
2000e-2(k)(c)(2): A demonstration that an em-
ployment practice is required by business neces-
sity may not be used as a defense against a claim
of intentional discrimination under this sub-
chapter.
2000e-2(m): Except as otherwise provided in
this subchapter, an unlawful employment practice
is established when the complaining party demon-
strates that race, color, religion, sex, or national
origin was a motivating factor for any employment
practice, even though other factors also motivated
the practice.
2000e-3(a): It shall be an_ unlawful
employment practice for an employer. to
discriminate against any of his employees ....,
because he has opposed any practice made an
unlawful employment practice by this subchapter,
or because he has made a charge, testified, as-
sisted, or participated in any manner in an in-
vestigation, proceeding, or hearing under this
subchapter.
FEDERAL RULES OF:
Appellate Procedure, Rule 35
(a) When Hearing Or Rehearing En banc
May Be Ordered. A majority of the current judges
who are in regular active service may order that an
appeal or other proceeding be heard or reheard by
the court of appeals en banc. An en banc hearing
76.
or rehearing is not favored and Ordinarily will not
be ordered unless:
(1) en banc consideration is necessary
to secure or maintain uniformity of the courts
decisions; or
(2) the proceeding involves a question
of exceptional importance.
(b) Petition for Hearing or Rehearing En
Banc. A party may petition for a hearing or
rehearing en banc:
(1) the petition must begin with a
Statement that either:
consideration by the full court is therefore
necessary to secure and maintain uniformity of the
court's decision
(B) the Proceeding involves one or
more questions of exceptional importance, each of
which must be concisely stated: for example, a
petition may assert that a proceeding presents a
question of exceptional importance if it involves
an issue on which the panel decision conflicts with
the authoritative decisions of other United States
Courts of Appeals that have addressed the issue.
Appellate Procedure, Rule 38
If a court of appeals determines that an
appeal is frivolous, it may, after a separately filed
motion or notice from the court and reasonable
opportunity to respond, award just damages and
single or double costs to the appellee.
Civil Procedure, Rule 9:
(b) Fraud, Mistake, Condition of the Mind.
In all averments of fraud or mistake, the cir-
cumstances constituting fraud or mistake shall be
Stated with particularity. Malice, intent, know-
ledge, and other condition of mand of a person
may be averred generally.
Civil Procedure, Rule 56:
(c) Motion and Proceedings Thereon: ...
The judgment sought shall be rendered forthwith
if the pleadings, depositions, answers to inter-
rogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine
issué as to any material fact and that the moving
party is entitle to a judgment as a matter of law.
A summary judgment, interlocutory in character,
may be rendered on the issue of liability along
although there is a genuine issue as to amount of
damages.
(e) Form of Affidavits; Further Testimony;
Defenses Required: ... The court may permit
affidavits to be supplemented or opposed by
deposition, answers to interrogatories, or further
78.
affidavits. When a motion for summary judgment
is made and Supported as provided in this rule, and
adverse party may not rest upon the mere allega-
tions or denials of the adverse party pleadings, but
the adverse party's response, by affidavits or as
otherwise provided in this rule, must set forth
Specific facts Showing that there is a genuine issue
Evidence, Rule 406:
Habit; Routine Practice. Evidence of the
habit of a person or of the routine practice of an
organization, whether corroborated or not and
regardless of the presence of eyewitnesses, is
relevant to prove that the conduct of the person, or
Organization on a particular Occasion was in con-
formity with the habit or routine practice.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.